President Pranab Mukherjee’s pointed reminder to the government on the constitutional restrictions on the resort to the ordinance route will, it is hoped, temper the present regime’s proclivity to push through legislation by invoking the extraordinary power repeatedly. Having signed a series of ordinances in recent weeks on the government’s advice, once or twice reportedly after seeking a clarification on the nature of the urgency that necessitated them, President Mukherjee has the moral
and constitutional authority to drive home the message to the government that it ought to be mindful of the limitations of the ordinance route. He has underscored that ordinances can be promulgated only “to meet certain exigencies and under compelling circumstances”, setting out the legal context in which the power may be invoked. And by concurrently speaking out against the tendency to use disruption as a means of parliamentary intervention, Mr. Mukherjee has subtly questioned the traditional wisdom of opposition parties that extracting an assurance or concession across the floor by wilfully obstructing proceedings is part of a legitimate exercise of parliamentary duties. In practice, both issues are intricately interlinked. It is often the combination of obstinacy on the part of the Treasury Benches and the Opposition’s obstructionist tactics that lead to legislative impasse and, further, to the promulgation of ordinances. Governments are increasingly eager to avoid constructive engagement with the opposition because the option of legislating through the use of presidential power is available to them.
Adding impetus to this tendency is the even more complacent belief that a lack of majority in the Upper House can be compensated for by convening a joint session of both Houses under certain circumstances. In a Westminster-model parliamentary democracy, Presidents may choose silent acquiescence with Cabinet decisions and avoid questioning the rationale behind executive advice. However, sometimes they are justified in speaking their mind and voicing their concerns on broad constitutional issues. What ought normally to occasion such concerns is any hint of impropriety, the cavalier resort to ordinances being one example. The disruption of Parliament to the point of making it dysfunctional is another example. The occasional piece of advice from a President may be easily dismissed by some as the feeble articulation of outdated principles incompatible with what is needed to survive the unsavoury contestation that electoral politics brings with it. However, it behoves a responsive government and a responsible opposition to avoid breaching the limits of constitutional propriety in their actions
