Commentary/Ashok Mitra

Principles be hanged, ordinances are forever

Why not admit it? A homogeneous collective memory for the nation spanning different generations is attractive as a concept; it does not, however, have any credible empirical correlates.

The saga of the struggle for Independence is of zero interest to the younger generations who now constitute the nation's overwhelming majority. School children are made to negotiate synoptic biographies of Mahatma Gandhi, Abdul Kalam Azad, Jawaharlal Nehru and others as part of their curriculum. Much of these narratives have a superficial context, with emphasis on the role individuals filled in the freedom movement; issues that exercised the public mind in those halcyon days have receded into deep oblivion.

Only a handful will remember after this interval of 50 years that one of the major planks in the charter of demands articulated by leaders as well as the masses following them during the period between the two World Wars was resistance to the frequent promulgation of ordinances by the British rulers. Subjugation to foreign power was a wretchedly demeaning experience. It meant rule by fiats and decrees.

Even when morsels of power were granted to legislative bodies to pass statutes in such areas as education and local self-government, ordinances continued to be an integral part of administrative functioning. Howsoever nonrepresentative the character of these elected bodies were under the Raj, and howsoever narrow the orbit of subjects they were permitted to deal with, legislative proposals mooted in the form of bills provided a prior opportunity to discuss the objectives motivating them.

Half a century is long enough time to forget the pledges of the freedom movement. The change of mood in fact started early, alongside the change of guard. The Constitution enacted in 1949 incorporated enthusiastically in its text a number of provisions from the Government of India Act, 1935; the prerogative of the executive wing to issue ordinances -- when Parliament or legislatures of states and Union territories were not in session and an imperative necessity arose to enlarge the administration's statutory powers -- was accorded formal recognition through Articles 123 and 239B.

The reasons proffered for this deviation from the promises the nation had entered into with itself during the freedom movement were little different from what the colonial masters were wont to spout. Instances abound of many countries round the world which have refused to write into their Constitution the provision for Emergency ordinances. They have nonetheless survived and prospered.

The contrast in our case is glaring; ordinances are threatening to become standard surrogate procedure for enacting fresh legislation. Parliament with its seemingly searching ways is being increasingly considered as an as-far-as-possible-to-be avoided nuisance. Non-democratic iron has entered the administration's soul. A distinct pattern of executive behaviour has, therefore, emerged -- dillydally with the legislative proposals, wait for Parliament to rise and then rush to Rashtrapati Bhavan to persuade the poor President to issue umpteen ordinances one after another.

True, these have to be vetted by Parliament before the expiry of six weeks after it reassembles. But once the ordinances are promulgated, it turns out to be a different kind of ball game. The very fact that the ordinances would lapse at the end of six weeks following the reassembly of Parliament, is turned into a plea to rush through the legislation without too much questioning the rationale behind it.

The government's prestige is laid on the line, and Parliament chooses to retreat even when hardly any ground exists for not challenging the credentials of an ordinance. There was the curious case last year of an ordinance issued to set up for the first time in the country a public depository system to strengthen the base of stock exchange activities.

Legislation to substitute the ordinance by statue was presented to Parliament after an interval of almost six months from the date of its promulgation. Not a single public depository, it was discovered, had started functioning in the intervening period, so much so that the ordinance might as well have been done without.

Bad habits have a tendency to entrench themselves. The two months between the close of the last winter session of Parliament and the commencement of the Budget session provided a golden opportunity for the government to misbehave. It squeezed through as many as 19 ordinances in the course of those 60 days.

At least one minister exploded into righteous indignation when it was pointed out that this practice of legislation by ordinance was an insult to the memory of the heroes who participated in the Independence movement. The minister, a post-midnight child, did not see the point: what have the compulsions of administrative expediency to do with the buffoonery our grandfathers used to indulge in?

It never rains but pours. The Election Commission, which is supposed to preside over the nation's suffrage, has furnished the latest example of the prevalent ethos in official circles -- principles be hanged, ordinances are for ever. A great number of 'non-serious' candidates, the EC is concerned, may enter the Presidential fray , now barely a few weeks away. This they will do by taking advantage of the fact that the security deposits required for contesting the poll is an inordinately small amount. Something, EC officials think, needs to be done immediately about it.

Parliament is not in session, so what would be more just and proper but persuade the President to proclaim an ordinance which would raise by a hefty amount the security deposit? Such a measure would definitely shut the door to bogus candidates.

It is a sad commentary to make but has to be made; no congratulations are due to the Commission on its depth of thinking. Even if it were to fix the security amount at Rs 100,000 or more, the purpose it has in mind would hardly be accomplished, for economic liberalisation has reared an affluent set to whom such money would not even cover a morning's idle pastime -- quite a crowd might still be tempted to invest this to-them-piffling sum to gain the public prominence which Presidential poll would guarantee. Only the non-rich non-serious candidates would be weeded out by the EC's fiat.

The class bias in its approach could not be more overt: Frivolousness on the part of the poor, it has ordained, deserves to be disciplined, but not that of the rich.

Leave that point aside. Even if the EC was justified to make an issue of the quantum of deposit money, it has not the flimsiest excuse to seek the promulgation of an ordinance for the purpose. It had plenty of time at its disposal to deliberate on the matter. In the light of the conclusions it arrived at, it could have prepared the necessary documentation justifying an amendment to the statue governing the procedure and forwarded its proposal to the government.

It did not have to wait for the Parliament to be adjourned before the bright idea occurred to it.

Tell us what you think of this column