31/12/2014 1:40 PM IST | Updated 15/07/2016 8:24 AM IST

Government's Ordinance Push Is 'Constitutional Terrorism': Rajeev Dhavan

Indian Prime Minister Narendra Modi addresses an election campaign rally in Jammu, India, Tuesday, Dec. 16, 2014. The final phase of the five-phased state elections of Jammu and Kashmir will be held on Dec. 20. (AP Photo/Channi Anand)

In the six months since Prime Minister Narendra Modi has come to power, his government has used multiple ordinances to push through policies as Parliament has remained disrupted.

Under Article 123 of the Indian Constitution, an ordinance is an emergency order issued by the executive when the parliament is not in session. But the Modi government has used ordinances to auction coal mines, raise foreign investment in insurance ventures and dilute the provisions of an earlier land acquisition law.

While Modi's Bharatiya Janata Party has majority in the Lok Sabha, its reform agenda has been stuck in a rowdy winter session of the Rajya Sabha, where it does not enjoy a majority.

HuffPost India spoke to Supreme Court advocate and constitutional law expert, Rajeev Dhavan, about the history of ordinances in India. He described the Modi government's action as "constitutional terrorism." "Legislation by executive is to be decried in any democracy," he said.

When can the government issue an ordinance?

India’s constitution is patterned under the Government of India Act, 1935. The British had an ordinance-making power. It was continued in our constitution as an exceptional power meant for the period when the Parliament was not in session. This is under Article 123 and similar powers were given to the governor. This is clearly an outdated, British legacy, which should never have been permitted in the Constitution. If other parliamentary systems can succeed without the use of an ordinance so can the Indian system.

How have ordinances have been used in the past?

By and large, these have been used terribly. In the D.C. Vadhwa case, Justice Bhagwati frowned upon the constant use of ordinance by the Bihar government and said it was at variance with constitutional purposes, but did not lay down that they were invalid if repeatedly used. Thereafter there has been a continued use of ordinance or threatened use of ordinance. This is to bypass Parliament. It doesn't supplement its powers.

What is the political situation today that is leading to ordinances?

Today, we find that Minister Arun Jaitley now wants to invoke this power for a number of changes. Admittedly, there is a failure in the working of Parliament. In the last Parliament, because the opposition was as rowdy as Parliaments are not supposed to be, the work got stalled. Now in Modi’s Parliament, they don’t have a majority as well. But they will get a majority in time because it comes from indirect election and Modi is now winning state after state. But right now, there is an impasse.

Does the government have a alternate route?

There is a two-stage purpose behind Jaitley’s actions. He says, I will pass all these ordinances and then I will get them ratified by the legislature, which has to be done within 30 days of Parliament reconvening. Now, he has alternative route and that is call a joint session of parliament where he knows that the BJP and its allies have a majority. These are both extraordinary measures.

Does these situations—coal block auction, raising foreign investment in insurance and changing land acquisition rules—warrant an ordinance?

As far as the coal block ordinance is concerned, no doubt there needs to be some measure taking this forward because the Supreme Court has struck down all coal leases. The government has an alternative to auction the leases by e-auction. But it refuses to do so because it feels more secure using legislative powers.

What about Land Acquisition?

The Land Acquisition is a very important legislation. Our previous Land Acquisition Act was based on eminent domain and was dated 1894. The present Land Acquisition Act is a 2013 Act which enhanced greatly the compensation that had to be given and introduced due process and environmental aspects into the acquisition. It also created the possibility of acquisition for private rather than public purposes. Now, these changes were hard fought and were considered very equitable. What the Modi government now suggests is that there will be a number of acquisitions that will be made which concern farmer and poorer people which will bypass this particular statute. The change that they are making is that the consent clause will not be required.

Should such a law be changed by an ordinance?

To have a land acquisition statute changed within a year undermines every aspect of social justice that this new act had brought. Obviously, this kind of statute cannot be the subject matter of an ordinance. It has to be placed before parliament no matter how rowdy parliament is. It requires discussion.

What about the insurance ordinance that alters the equity that foreign firms can have?

There is no great urgency whether this ordinance is passed in December or whether it is passed after the Budget Session commences in February 2015. It is nothing but an act of constitutional terrorism that subverts both the constitution and its purposes and grossly violates democratic principles. Legislation by executive is to be decried in any democracy.

Are you saying the Modi government is acting unconstitutionally?

No doubt, there is an impasse in parliament but that has to be decided by parliament. It cannot be short circuited. But this is the most massive threat of use of ordinance power by the centre. But really what the government is saying is that we have declared a policy and we will show that we are serious about it. It is an exercise in political posturing to show that Modi raj is going to be efficient and immediate in its responses. All of a sudden, this whole investment atmosphere is sought to be changed by ordinances. It should not be done without reference to legislative procedure. These sort of bills need to go not just to parliament but also to select committees that were set up after 1992. How can these changes just be made in a cabinet office?

Won’t foreign investors feel insecure with ordinances?

That is the other question. Will parliament affirm them. Look at the uncertainties for someone who wants such an ordinance. What will happen if the parliament does not approve this? Will the ordinance lapse? Will anything done under ordinance also lapse? Now if the parliament blocks this then the uncertainties remain and it is highly likely that the parliament will block this—partly as a political manoeuvre by the opposition and partly because uses of ordinance power are unworthy of democracy.

Can the government issue a second ordinance?

This was precisely the subject matter of the Vadhwa case in the 1980s. Justice Bhagwati said that you are issuing ordinance after ordinance, which is simply unacceptable but he did not say it was invalid. Then what choice does Jaitley have? A joint session of parliament, which has been called twice, I think, in the 1960s, so that his majority in the Lok Sabha combined with the majority in the Rajya Sabha will overwhelm this process.

Additionally, this creates a lot of uncertainties.

Uncertainty number one—will it be accepted by Parliament. Uncertainty number two: will the Modi government reissue the ordinance and will reissuing of the ordinance be declared unconstitutional—it is a question as yet undecided. Uncertainty number three: if it is challenged in court, will the court issue notice? Uncertainty number four: will this be resolved by joint sessions of Parliament. And uncertainty number five: if at the end of it, uncertainty number 4 doesn’t happen, then how will you get it through parliament and what will be the effect of the action that you have take between December and when the ordinance lapses. Will it be valid? It is a moot question, still.