Constitutional terrorists?
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Constitutional terrorists?

Pallavi Saluja

One can critique the government for “arbitrarily” using Ordinances, but equally one would need to damn MPs, who actively disrupt the functioning of Parliament.

The Securities and Exchange Board of India (SEBI), the regulator of Indian capital markets, is now a household name. Anyone who has a mutual fund investment or even an investment in a bond would have heard of SEBI, a regulator vested by law with enormous powers.

There is one unique feature of this all-powerful regulator — right from the time the law constituting SEBI was made, almost every single legislative intervention governing SEBI was done by a Presidential Ordinance, followed up with an Act passed by Parliament. Increasingly, this feature is not unique to SEBI. It is becoming substantially, the story of law-making in India.

When lawyers argue, and judges interpret “legislative intent” and the “mind of Parliament”, everyone in the courtroom knows that the intent and the will they talk about are not those of the individuals who are Members of Parliament. The most complex of legislation can get piloted by the government through Parliament in a jiffy, by adopting the Ordinance model. The trend also raises the larger question of whether the Parliament as an institution is serving the Constitution as intended by the founding fathers. Here is how:

The Constitution empowers the Parliament and state legislatures to make laws on subjects listed within their jurisdiction. Of the two Houses of Parliament, the Lok Sabha is directly elected by the people, and Rajya Sabha is elected by those who have been elected by the people. The Rajya Sabha is a constant, while the Lok Sabha has to be entirely re-elected. The government of the day holds office so long as it enjoys the confidence of the Lok Sabha. The Rajya Sabha can’t sack the government. It is the conscience-keeper (which is why it comprises “elders”) and is to act as a check and balance on the brute majority that government may enjoy in the Lok Sabha. At the state level, there’s a choice; they need not constitute a legislative council akin to the Rajya Sabha.

Article 123 of the Constitution enables the central government to make law in the form of an Ordinance when either House of Parliament is not in session. The government needs to be satisfied that circumstances necessitate immediate legislative action. A law made in the form of an Ordinance has the same effect as an Act made by Parliament. When Parliament reconvenes, the Ordinance is required to be placed in each House as a draft Bill to be passed into an Act of Parliament. Six weeks from the time Parliament reassembles, the Ordinance would lapse. Of course, if both Houses of Parliament disapprove of it before that, the Ordinance would lapse.

This was intended to be an exception to the rule. Today, it is threatening to become the rule. The formula is simple: First, promulgate an Ordinance. Do not worry if it lapses. Despite the Supreme Court’s admonition of the practice, Ordinances are promulgated repeatedly. In recent amendments to the SEBI Act, the same Ordinance was promulgated the third time, with the addition of one new provision, which would enable an argument that the Ordinance should not be considered as the old one being introduced again.

When an Ordinance is presented as a Bill to be passed into an Act, it would meet minimal interference from MPs, since by then the Ordinance would have already ruled our lives for long. It would then take enormous intellectual capacity and political will to undo its effect. In the recent SEBI Act amendments, the Ordinance was a weapon in the war between Parliamentarians who were part of the Standing Committee and the Ministry of Finance, the executive arm of government pushing for the amendments. The then Finance Minister would write to the Speaker of the Lok Sabha to get the Standing Committee to move on its report, and when it would have no effect, he would promulgate the Ordinance yet again.

One can critique the government for “constitutional terrorism” by using Ordinances, but equally one would need to damn MPs, who despite being public servants, not only shun work but actively disrupt the functioning of Parliament. The attitude of both the executive government and of the legislature has become assaults on the spirit of the Constitution. This is not so much about having a political majority on the floor of a House of Parliament, but about the sheer lack of leadership and political statesmanship on the part of members of the Houses and those occupying the Chair in them.

It has been ages since an MP faced disciplinary action for disrupting Parliament — they are all sitting ducks with their conduct well recorded on camera. The attitude spills over into the Parliamentary Committees, which are mini-Parliaments to which Bills are referred routinely as a matter of course. The page on Parliamentary Committees on the official website of the Parliament of India says this:

“The work done by the Parliament in modern times is not only varied in nature, but considerable in volume. The time at its disposal is limited. It cannot, therefore, give close consideration to all the legislative and other matters that come up before it. A good deal of its business is, therefore, transacted by what are called the Parliamentary Committees.”

What prevents Parliament from being convened for longer durations so that “the time at its disposal” is not limited? What is the volume of “varied work” for it to be too busy to “give close consideration to all the legislative and other matters that come up before it”? Parliament is after all the supreme law-making authority in the State — nothing is beyond its reach within the framework of the Constitution. Unless MPs cease and desist from terrorising it, and unless the leaders of the Houses take their role a lot more seriously, they would leave behind a nation that makes progress despite its Parliament rather than because of it.

(Somasekhar Sundaresan is a lawyer who believes that telling it like it is, is neither unparliamentary nor a breach of Parliament’s privilege)

This article was first published in The Hindu Business Line print edition dated January 10, 2015

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