Author Archives: Shubhankar Dam

Presidential profile – APJ Abdul Kalam, former president of India

Avul Pakir Jainulabdeen Abdul Kalam, commonly known as APJ Abdul Kalam, was sworn in as India’s 11th president on July 25, 2002. A space expert and science administrator by profession, he became the third Muslim (in a predominantly Hindu country) and the first scientist to assume the presidency. He was also the first, and so far, the only person to have stepped into the office without a background in politics.

Presidents in India are indirectly elected by a complex arithmetic of proportional voting. Members of both houses of parliament and all state legislatures are eligible to vote in such elections. Any person aged 35 or more, and eligible to be a member of the lower house of parliament may stand as a candidate. Elections, though, are mostly contested along party lines, and the composition of the electorate and the method of voting mean that the outcomes are often known well in advance.

The center-right Bharatiya Janata Party (“Indian Peoples Party) (BJP) and its National Democratic Alliance, then in power in New Delhi, along with some regional parties nominated Kalam’s candidature on June 10, 2002. A week later, on June 18, 2002, the Congress Party, the principal opposition at the center, also announced its decision to back him. His nomination came months after a state in Western India was rocked by riots along religious lines. Commentators speculated if a Muslim had been nominated to reset India’s (tolerant) image, nationally and beyond.

Kalam, expectedly, won his election by a massive margin, and was sworn in on July 25, 2002. He would remain in office for 5 years.

The Indian presidency, it is often said, is modeled after the British monarchy. At an obvious level, the comparison is misleading. Britain is a monarchy, India is a republic. The president, the head of state, is elected. Indeed, the Indian president is the only nationally, albeit indirectly, elected office under the Constitution. He or she has claim to a degree of constitutional and electoral legitimacy monarchies don’t.

Nonetheless, the Indo-British comparison remains the standard template both in academic and judicial thinking.

Perhaps the most important power of the president is to appoint a prime minister. Ordinarily, this is an easy task. Imported British conventions dictate that the leader of the party with a majority in the lower house of parliament must be invited to form the government. But there are exceptions, and Kalam faced a peculiar challenge two years into his term.

In May 2004, the Congress-led United Progressive Alliance won an upset election victory against the BJP-led National Democratic Alliance. The Congress party elected its leader, the Italian-born Sonia Gandhi, to be the leader of the parliamentary party.

Immediately, protests broke out. Demonstrations and counter demonstrations happened. To many it was a matter of national pride. Adapting from the US Constitution, only naturally born Indian citizens should be prime ministers, they argued. The Indian Constitution, of course, imposes no such limitation.

Kalam had a decision to make. As he weighed his options, some speculated about his reservations in appointing Sonia Gandhi as the prime minister. Ultimately, he didn’t need to decide. Gandhi, enlightened by her “inner voice”, refused the party’s nomination, and instead suggested economist Manmohan Singh as the prime minister. (Singh would hold the prime ministerial reigns for two full terms.) In his account of the presidency, Kalam, for his part, denied claims about his reservations about Sonia Gandhi. He would have appointed the leader of the majority party, whoever that be, he wrote.

President is the head of state, and all decisions are taken in his name. Judicial opinions and academic commentary, once again, interpret the powers of the presidency through a British lens. A president exercises formal powers, it is said; the real powers vest with the council of ministers headed by the prime minister. The latter decides, the president delivers. His discretion is limited, so goes the conventional view.

Presidents may have limited discretion, but they also have endless time in which to decide those matters. And President Kalam demonstrated the enormity of the passive powers of his office. He did so while dealing with mercy petitions of convicts on death row. Ordinarily, mercy petitions are decided by the council of ministers, and passed on to the president for approval.

Kalam, strongly opposed to the death penalty, simply sat on the petitions. He did nothing about them. Of the 21 petitions forwarded to him during his term in office, he sat on all but one.

Occasionally, his inaction attracted controversy, but Kalam remained steadfast. An unequal application of the death penalty (almost all death row convicts were impoverished citizens), he said, was a violation of the Constitution.

Occasionally, his action attracted controversy, too. In India, the central government may dismiss state governments under certain circumstances, impose president’s rule, or dissolve the legislature and initiate new elections. The decision to dismiss a state government is taken by the council of minister but must be approved by the president. In 2005, Kalam signed off on a controversial dismissal by the UPA government, something, he later regretted. He should have studied the matter further, he said, instead of hurrying it. (The dismissal was challenged in the supreme court, and eventually overturned.)

Kalam’s most challenging moment arrived in 2006 after both houses of parliament enacted a self-serving piece of legislation. It retroactively removed disqualifications many members of parliament suffered by holding “offices of profit” – something the Constitution bars. Kalam agonized over the Bill at his desk. He found it unprincipled and hasty. He formally returned the Bill to the two houses asking them to reconsider – the first and only time a president in India has done so. The houses didn’t reconsider; they simply reenacted it. Once again, it landed before Kalam. Unwilling to precipitate a constitutional crisis, he eventually gave his assent. In his autobiography, he called this the “toughest” decision of his presidency.

As he neared the end of his term, questions arose about re-nominating him to the presidency. An organic groundswell of support appeared both in print and electronic media. Newspapers carried large numbers of op-eds and letters to editors expressing support for Kalam. Online petitions swelled with support. For a man who never stood for direct elections, Kalam was a home run; he would have swept away any opposition in a direct contest.

The NDA, his original proposer, extended its support. The Sonia Gandhi-led Congress Party, though, refused. We may never know why.

Fali Nariman, India’s preeminent jurist voiced what millions of Indians felt when he wrote of Kalam’s departure: “We will miss him — that unconventional figure who became India’s First Citizen in July 2002. Never pompous, not even ‘presidential’, he walked into the Palace at Raisina Hill with few worldly goods — he now leaves with even fewer … We could have asked him to stay: but we didn’t … Of him it can be said, as Winston Churchill once said about his departed king: ‘He nothing common did, or mean, upon that memorable scene.’ Memorable scenes are rarely re-enacted, but they are always remembered.” (Fail Nariman, “We’ll miss you, Dr Kalam”, Indian Express, July 23, 2007)

From his first days in office, Kalam was massively popular. Old and young, across political lines, identified with him, and endearingly referred to him as the “people’s president”. His simplicity, his infectious, if inchoate, optimism was his strength. India’s only bachelor president, and in his 70s, he was widely popular with students, and often interacted with them.

A lifelong teacher, poet, and the author of many books, Kalam maintained associations with several universities in India and elsewhere after his presidency. Perhaps fittingly, he died (of a heart attack) while lecturing to a group of students at the Indian Institute of Management, Shillong. He lived in the classroom and died there, too.

At least the for the foreseeable future, APJ Abdul Kalam will remain India’s most endearing apolitical politician.

India – Of the People, for the People, by the President: The Constitutional Status of the National Capital Territory of Delhi

States and Union Territories of India

India is made up of two types of mega-administrative units: “States” and “Union Territories”. The States are fully functional politico-administrative units. They are endowed with constitutionally entrenched legislative and executive powers. They function through an executive that is responsible to a popularly-elected legislature. Governors formally head these States. Real executive powers, though, vests with the ministerial councils headed by the Chief Ministers. India, it is often said, is a federation – or something akin to it: These States make it so. There are 29 such States in India now, Telangana being the latest one, created in 2014.

Then there are the Union Territories, currently, 7 in all. These units don’t have elected legislatures or a “responsible” executive. They are ruled by the President of India. Article 239 of the Constitution empowers the President to do so: “…. every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.” Article 240 clarifies that the President may make regulations for the “peace, progress and good government of the Union Territories”. If India only had Union Territories, it would unquestionably be a unitary, as opposed to a federal, system.

This neat division between States and Union Territories took some doing. The original Constitution, compelled by colonial realities, drew a complex internal map of India: 4 different types of administrative units were recognized with distinct powers and functions. A simplified map was unveiled in 1956. India was reorganized mostly along linguistic lines, and the current system of States and Union Territories was introduced. At that point in time, India had 14 States and 6 Union Territories.

The National Capital Territory of Delhi: A Mixed Category

The division, though, isn’t neat. Not all Union Territories are the same: Some are more than others. Introduced in 1962, Article 239A authorized Parliament to create legislatures or ministerial councils or both for Union Territories with such powers and functions as it deems fit. Doing so would make a Union Territory more like a State. Parliament exercised its power once: 1987. The former French colony of Pondicherry (now Puducherry) in Southern India was given a legislature and a ministerial council, and it functions through these organs.

A more important change was introduced in 1992. It had to do with Delhi. Article 239AA was inserted into the Constitution amending the status of the Union Territory of Delhi. It would now be called the National Capital Territory of Delhi (NCTD), and would have a Legislative Assembly and a Council of Ministers to “aid and advise” the Lieutenant Governor (LG), the formal head. NCTD was different from Pondicherry. The State-like organs in Pondicherry were created by an Act of Parliament; a constitutional amendment inserting Article 239AA achieved the same for NCTD. Consequently, Delhi has a constitutionally provided for legislative assembly and a Chief Minister-led council.

The Council of Ministers rule their respective States. The President, or his appointed administer, rule the Union Territories. What, then, is Delhi? Who rules it?

In February 2015, a political start-up, Aam Aadmi Party (the Common Man Party), took Delhi by electoral storm. It won 67 of the 70 seats in the Legislative Assembly, and roared into office. With more than 95 percent of the seats won, it created an electoral record of sorts in India. AAP’s victory came as a rude shock to the Bharatiya Janata Party (Indian People’s Party) which currently holds power at the center (the federal government) in New Delhi.

Skirmishes soon broke out. Delhi Chief Minister, Arvind Kejriwal, went about his business. He had the people’s mandate, he said, to implement his manifesto promises. The BJP objected. Soon the central government, through the President, began intervening in the functioning of the NCTD Government. It is a Union Territory, the central government claimed, and, therefore, the President retains overall say and supervision.

In the States, except when specifically provided, governors exercise executive power on the “aid and advise” of ministers; they do not exercise discretion. If NCT is more like a State, then, clearly, the Assembly and the Council of Ministers will govern like they do in other States. But if Delhi, despite its trappings, is no more than a Union Territory, naturally, the President will rule. Which is it? In February 2016, the matter wound up before the Delhi High Court

Characterizing Delhi: The People v. The President

In August 2016, the High Court, in Government of National Capital Territory, Delhi v Union of India (2016) concluded that the NCTD is a Union Territory. Despite the Assembly, Council of Ministers and the people’s mandate that underpins these offices, the President, or his appointed administrator, is the ultimate ruler.

Both States and the NCTD have elected assemblies and responsible governments. In addition, States have Governors while the NCTD has a Lieutenant Governor. But these gubernatorial offices aren’t constitutionally analogous, the High Court held. Governors have limited discretion, and they are specifically enumerated in the Constitution. The LG, however, has much wider discretion: Under Article 239AA (4), his discretion extends to matters on which he must act “by or under any law” in addition to the Constitution. If the ministers and the LG disagree on any matter, the LG shall refer it to the President whose decision has shall be final and binding. And in the interim, the LG has the authority to act contrary to the advice tendered by the Council of Ministers if it is necessary for him to take immediate action. As a result of this verdict, all ministerial decisions must be communicated to the LG, and he is at liberty to accept or reject such decisions.

In arriving at this conclusion, the High Court dug up both precedents and a range of secondary sources including the Balakrishnan Committee Report and parliamentary debates to which responsible government in NCTD owes its origins. The concerns outlined in these secondary sources were many, and not unreasonable. New Delhi is the capital of India; it houses the offices of the national government, the upper echelons of the armed forces, and the Supreme Court. This is in addition to embassies, diplomats and other international bodies that participate in the national life of India in New Delhi. Full statehood would make it impossible for the Central Government to exercise control over the territory in which it is housed, thereby making it harder to govern. Retaining control over the territory is the reasonable thing to do, the secondary sources argued. The High Court agreed.

But the bigger question remains: If all ministerial decisions in NCTD must ultimately meet with presidential concurrence, why have an elaborate government and Assembly? What point does it serve? Either these organs and offices matter, or they don’t. Imposing the President as the constitutional overlord, it is clear, relegates the NCTD to Union Territories that do not have these elaborate trappings. If the Delhi High Court is correct in its reading of Article 239AA, the provision – the offices it creates and the confers it ostensibly confers – is entirely redundant. The people, their mandate, don’t matter; only the President does.

President’s Rule in India: Understanding the 2016 Controversy

The Context

India is a “Union of States”. Currently, 29 states make up the Union. They are below the federal government, but enjoy constitutionally guaranteed powers. The structure is more or less symmetrical. Nationally, president is the head of the republic; regionally, governors head the states. Real power though vests with the prime minister (of the country), chief ministers (of the states) and their respective council of ministers. States elect their own executive and legislative branches. They function independently; the center doesn’t supervise or interfere. There are exceptions though, of which Article 356 is the most egregious.

The Provision

Article 356 says: “If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation:

(a) assume to himself all or any of the functions of the Government of the State …;

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; [and]

(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution …”. Only the powers of the courts cannot be take over.

Article 356 isn’t intrusive: it is destructive. It destroys state governments. It wrenches the executive from office, and suspends or dissolves the state legislature. Who can do it? The President. He or she does it on the advice of the Union Council of Ministers. When can he do it? At any time. Such proclamations must ultimately be approved by Parliament though. Without approval, proclamations remain in effect for two months. With approval, they stay for six months. Why might the president do it, that is, destroy a state government? Article 356 is clear: The president may resort to it if he “is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of [the] Constitution”.

The provision is impossibly vague. The Indian Constitution, in 1950, had 395 articles. Now some sixty-five years later, it has more than 500. The president may dismiss a government if it cannot be carried on “in accordance with the provisions of the Constitution”. Which provisions? All? Some? Few? The important ones? The most important ones? Only the mandatory ones? Anyone? It is not easy to tell. The provision is rife with potential for abuse. Perhaps the drafters wanted it to be so. India, then, was fragile, its territorial sinews weak. Some state leaders had both grudges against India, and sovereign ambitions. How were they to be tempered? In came Article 356: vague and easy.

The Use and Abuse of Article 356

President’s Rule has been imposed more than 125 times. That’s an average of two proclamations every year. Not all of these were abusive; some were necessary. The State of Jammu and Kashmir in northern India is currently under President’s Rule, and without controversy. The people elected a fractured State Assembly. No party or coalition has a working majority, and none were willing to develop one. The president had little choice but to invoke Article 356. Parties have time to parley among themselves. If no solution is found, eventually a new mandate will be sought.

But many impositions have been controversial.

Arunachal Pradesh, a distant state in the Indian North-East, is under President’s Rule. It was imposed on January 26, 2016. It has invited acrimony and accusations from all sides, and the dismissed government has asked the Supreme Court to referee it.

The details are murky. The center and the state are run by opposing political parties. The National Democratic Alliance rules India; the Congress-led United Progressive Alliance ruled the state. The governor, an appointee of the central government, recommended President’s Rule because a mandatory provision of the Constitution wasn’t followed. Legislative assemblies must convene once every six months: so says the Constitution. The Arunachal assembly didn’t. With state government not functioning in accordance with the provisions of the Constitution, it was dismissed.

The Congress party though saw things differently. It was in power in the state. But a faction broke away and joined hands with the opposition. The Assembly was scheduled to meet in early January of 2016. The government had plans to prove its majority in the floor of the Assembly then. The governor though, acting on his own, brought forward the date of the Assembly. He scheduled it for mid-December of 2015. The ministry now had less time to “arrange” its majority. It ordered a lockdown of the Assembly; no sessions could be held. But the breakaway faction along with the opposition convened a “session” outside the Assembly premises: it was a theater of the absurd.

Political defections are common in India, but the rules that govern their validity are complex. The speaker decides if such defections are legal. The breakaway faction voted out the incumbent speaker, and elected one of its members as the new speaker. They had effectively validated their defection. But the Assembly was still under lockdown. Eventually, time ran out. Six months had elapsed since the last session. And the governor found in that the perfect excuse to recommend dismissal of the government.

The Arunachal facts demonstrate the deadly effects of Article 356. It is an invitation to chaos, to create one where none exists. It is particular enticing when different parties hold power at the center and the states. The center holds all the constitutional cards. It can create uncertainty, dismiss a government, and install a new one or invite fresh polls. Parties of all hues have enacted this script. None of this should be surprising: The provision was made to order for abuse.

The Supreme Court Decides

Article 356 raises an array of challenging questions. Two of them are basic: they are threshold matters. First, is the president’s satisfaction under Article 356 subject to judicial review? After dithering for decades, the Supreme Court in SR Bommai v Union of India (1994) concluded that it is. Now presidents must justify their satisfaction to the courts. Second, what does it mean to say that a state government cannot be carried on in accordance with the provisions of the Constitution? This remains an open question. The court has been sporadic answers, in response to particular challenges. But a systematic exposition is yet to happen.

The Congress party has challenged the dismissal of the government. The Supreme Court has taken up the matter. Because presidential satisfaction is subject to judicial review, admissibility questions were resolved easily. The real question is the second one: is a violation of one mandatory provision sufficient to attract the devastating wrath of Article 356? To say yes is to uphold the Constitution. To say no is to strengthen India’s weak federalism. What will the court choose?

No End in Sight: The Endless Cycle of Mercy Petitions in India

The power to pardon is a common one; most heads of state enjoy it. Article 72 of the Indian Constitution confers it on the president: “The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence: (a) in all cases where the punishment or sentence is by a Court Martial; (b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends; and (c) in all cases where the sentence is a sentence of death”. Governors enjoys similar powers at the state level under Article 162: “The Governor of a State shall have the power to grant pardons … [to] person convicted of any offence against any law relating to a matter to which the executive power of the State extends”.

This power to grant pardons has endured several controversies in India. Broadly speaking, they fall in three different categories. Some issues had to do with the “what” question. What is the scope of this power: what does it mean to “pardon”, “remit”, “commute” and so on? Some controversies have had to do with the “when” question: When are presidents and governors qualified to pardon? Can they do so while appeals are pending? Can the same person benefit from these powers more than once? Lastly, a large number of controversies have to do with the “how” question: How should presidents and governors exercise their power to pardon? Is a hearing necessary? What factors should they take into account? Should they be consistent in their decisions to grant or reject pardons? For how long can they hold on to pardon files? Are there time limits on the exercise of this power? At the core of these questions, is the common tension between limited and unlimited power. The power to grant pardons is a constitutional one: it is derived from the constitution. But is it limited? Are their constitutional constraints regarding the manner in which the power may be exercised? India’s Supreme Court has greatly vacillated on these questions. The jurisprudence of pardon in India isn’t in a happy state.

In this blog post, I shall briefly canvas the “what” question. But my focus here is one of jurisdiction, not the meaning of the specific powers enumerated in the two provisions. Presidents and governors, broadly speaking, enjoy similar kinds of powers: Both may grant pardons, reprieves, respites or remissions of punishment or suspend, remit or commute sentences. But they do so over different matters, or so it seems. The president’s jurisdiction extends to punishments and sentences awarded under federal laws. The governor’s jurisdiction is limited to those awarded under state laws. In practice, the division isn’t as neat. In India it is common to charge persons simultaneously under laws passed by Parliament and the state legislature. If found guilty, they may be convicted under both types of laws. Their sentences almost always run concurrently. As a result, persons may serve sentences for having violated both central and state laws. In such instances, both the president and governor, it seems, are qualified to consider petitions under Articles 72 and 162. What if a governor pardons a convict while the president rejects her petition? The power of the president and the governor to pardon are plenary in nature: Both are provided for in the Constitution. They do not stand in a hierarchy. As such, one cannot – does not – give way to the other.

The difficulty regarding the scope of the two provisions is further accentuated by the reference to death sentences in Article 72. The provision confers “in all cases where the sentence is a sentence of death” the power on the president to suspend, remit or commute it. Death penalty is legal in India, and both federal and state legislation may prescribe it for various offences. Because state legislation may also prescribe the death penalty, governors under Article 162 retain the power to deal with such sentences in appropriate cases. But this creates an uneasy situation. How may one reconcile Articles 72 and 162? One way is to read Article 72 exclusively. It says that the president has the power to commute death sentences “in all cases”. Perhaps it means what it says: the president will deal with all cases of the death penalty.

There are two problems with this: one has to do with interpretation; and the other with practice. The problem of interpretation is an obvious one. Conferring exclusivity to the president on death penalty matters implies that Article 162 doesn’t mean what it says. Governors under this view wouldn’t enjoy the authority to deal with death penalty matters even if the sentences are pursuant to laws enacted by state legislatures. The second problem has to do with practice. Since 1950, governors have routinely exercised their authority under Article 162 to commute death sentences. The “exclusive” interpretation was never taken seriously. Consequently, presidents and governors have in many instances dealt with the same mercy petitions.

Usually, convicts take a serial approach. They petition the governor first. If they succeed, the matter ends. If they fail, they approach the president. The constitution doesn’t specify the number of times convicts may approach the governor or president for mercy. The conventional understanding is that they may do so more than once, provided “new matters” that deserve to be considered. New revelations, even hearsay ones, delay etc have been treated as new issues that make a fresh mercy petition worthy. A farcical script was recently played out in India. Yakub Memon was convicted and sentenced to death for this role in the serial blasts that rocked Mumbai (Bombay) in early 1993. This sentence was upheld the High Court and the Supreme Court. As the day of execution neared, a flurry of petitions were filed with the president and the governor. Soon after the governor rejected it, a new one was filed with the president. The governor’s rejection was deemed to be a “near circumstance” for approaching the president. Soon after the president rejected it, Memon’s lawyers approached the Supreme Court arguing that his petition was wrongly rejected. The court dismissed the matter. This was again used as a new ground and a new mercy petition was filed before the governor. The circle was repeated. On 28 July 2015, judges of the Supreme Court woke up to hear a final challenge against the rejection of this latest mercy petition by the president at 2.30 AM. Couple of hours later that morning, he was finally executed. An exasperated Court asked: should there be limits to the number of times a person may petition the governor or president, and seek a review of those executive decisions?

The constitution doesn’t lay down any limits. Perhaps the challenge lies in the provision itself. What is achieved by allowing the same convict to approach both the governor and the president on the same matter is not immediately clear. An exclusive reading of Article 72 would take away the governor jurisdiction to deal with death penalty cases. One cause of delay will be removed instantly. Presidents would have the sole authority to review these petitions. But that still leaves open the question of numbers: how many times is it acceptable to approach the president on the same matter? Till conventions grow, or some guidelines are judicially pronounced, the circus of mercy petitions is likely to continue.

India – The Repromulgation of Ordinances  

On 30 December 2014, the Narendra Modi Government in New Delhi promulgated an ordinance: The Land Acquisition, Rehabilitation and Resettlement Ordinance 2014 (LARRO 2014). The authority to promulgate ordinances comes from Article 123 in India’s Constitution. It says that the President may promulgate ordinances if the Houses of Parliament are not in session and the laws are immediately necessary. Once the Houses of Parliament return to session, such ordinances must be made into legislation by the normal parliamentary procedure. LARRO 2014 did not succeed in Parliament. The Modi Government didn’t have sufficient votes in the Upper House to get it through. In keeping with Article 123, the ordinance should have lapsed. The government though had other ideas. Keen to persist with the law, it repromulgated the ordinance on 31 March 2015; days after Parliament broke for recess during its Budget Session (LARRO 2015). What if the government repeats this endlessly? If permitted, the practice would effectively keep an ordinance in the statute book without subjecting it to a parliamentary vote – or worse, even after Parliament has voted it down. Is repromulgation of ordinances lawful?

The practice of repromulgating ordinances, especially at the state level, has been around for decades. It was brought to light, ironically, by an economist, Diwan Chand Wadhwa. He stumbled upon a peculiar legal trail while studying land reforms in eastern India. An amendment to the Chota Nagpur Tenancy Act, 1908, he noticed, was being repeatedly promulgated as an ordinance in the State of Bihar. The text never changed; essentially, the same ordinance was being repeated. Doubtful about the constitutionality of the practice, he delved in. A grim picture emerged. Between 1967 and 1983, Bihar had repromulgated as many as 265 ordinances. Of these, 60 ordinances were in effect for a year or less. About 50 were repeatedly promulgated for 5 to 10 years. Astonishingly, 13 had been “kept alive” for as long as 10 to 15 years without subjecting them to a legislative vote. The Assembly didn’t function, except in name only. And by relying on Article 213 the Bihar executive had effectively stepped into the shoes of the legislature. Wadhwa put together his research in a book Repromulgation of Ordinances (1982).

Inspired by the critical acclaim his book received, Wadhwa petitioned the Supreme Court the same year. In D.C. Wadhwa v State of Bihar, the question of repromulgation was squarely before the Court. Repromulgations in Bihar, he argued, were unlawful. And the Supreme Court agreed. Makers of the Constitution intended ordinances to have temporary lives, the judges reasoned. For the executive to prolong them “without going to the Legislature” would tantamount to “usurping the law-making function”. That in turn would subvert the democratic process which lies at the “core of [India’s] constitutional scheme”. Little later in the decision, the Court had a stronger admonishment: To sustain an ordinance by repromulgating it with “substantially the same provisions” is to exercise power colourably; it is a “fraud on the constitution”. Repromulgations are unconstitutional, the Court concluded.

This verdict came in 1986. And yet repromulgation continued unabated in India. Surprisingly, repromulgation at the central level began only in 1992. A trend soon emerged. The 1990s altogether witnessed 53 instances of repromulgation. There were 196 ordinances in all in the 1990s; consequently, almost 25 per cent were repromulgated ones. How could that be? How could a practice declared unconstitutional by the Supreme Court be so common?

That is because the general rule in D. C. Wadhwa came with an exception. Repromulgation is lawful, the judges said, if a government is unable “to introduce and push through” a Bill to convert an ordinance either because “the Legislature [has] too much legislative business” or the time at its disposal is short. The explanation is worth quoting in full.

Of course, there may be a situation where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or the time at the disposal of the Legislature in a particular Session may be short, and in that event, the Governor may legitimately find that it is necessary to repromulgate the Ordinance. Where such is the case, re-promulgation of the Ordinance may not be open to attack.

So if the legislature is too busy or a session is too short, repromulgation is justified. That makes little sense. Who after all is to be the judge of busyness or duration?

DC Wadhwa, it must be said, encouraged rather than prohibited repromulgations; the 1990s speak for themselves. Unable to enact legislation properly, minority governments in India took to Article 123 as an alternative. Political expediency, not legislative urgency, motivated these ordinances and their repeat versions. But governments were always careful to claim the “proper” excuse: the Houses were too busy to deal with the ordinances. In Gyanendra Kumar v Union of India, 10 repromulgations of the Narasimha Rao Cabinet (1991-96) were put under the scanner. Two lawyers petitioned the Delhi High Court to pierce the Cabinet veil and see the ordinances for what they were: a “fraud on the Constitution”. The government took refuge in the Wadhwa exception: Because of “heavy and urgent” workload, “the Bills could not be debated upon” in Parliament. Therefore, repromulgations were necessary. The Court bought it. Veracity of those claims remained untested; the judge posed no further questions. Merely uttering the exception, it seems, is sufficient to satisfy the Wadhwa exception.

Notice that the Land Ordinance 2015 was not because of legislative busyness. The government never hid the fact that the repromulgation was made necessary because it didn’t have enough votes in the Upper House. A requisite parliamentary majority, in other words, was lacking. Is that a valid reason to repromulgate? The question is now before the Supreme Court. Whether the Court agrees to hear the petition and render a verdict remains to be seen.

Presidential Assent in India

The two Houses of Parliament enact legislation in India. But, like in the United States, these Bills do not become law until the President assents. Article 111 in India’s Constitution provides for assent generally: “When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent therefrom”. The subsequent proviso moderates this discretion: The President may return the Bill “as soon as possible” to the Houses with a message to reconsider it. However, if the Houses enact the Bill with or without amendments and present it to the President for assent, “the President shall not withhold assent therefrom”. The proviso also has a further exception: The President cannot return Money Bills for reconsideration. The power to veto legislation is an important one. In presidential systems, it is often the subject of intense political and academic debate. In contrast, the provision has hardly attracted attention in India; it is one of India’s forgotten powers.

Article 111 is not without significance. The President has at least two options. He or she may assent to a Bill; ordinarily it is the least controversial option. Or the President may return the Bill to the Houses seeking reconsideration. This is undoubtedly more controversial. It is, after all, a public statement that the President disagrees with the preferences of the two Houses. Depending on the circumstances, such a return may take censorial overtones against the government. But when should the President undertake such an exercise? Article 111 sets no definite time line. The provision merely commands the President to “declare either that he assents to the Bill, or that he withholds assent therefrom”. If the President evinces interest in returning the Bill, the proviso nudges him or her to do so “as soon as possible”. These amorphous words clearly make “delay” an option. Similarly, a returned Bill does not enjoy the protection of a specific time line. The proviso merely says that if both Houses re-enact the Bill with or without amendments, the President “shall not withhold assent therefrom”. But more crucially, is a third option possible? May the President sit on a Bill indefinitely? Unlike the American provision on assent (Article 1 § 7), there is no assent by implication in India. For a Bill to become an Act, the Indian President must affirmatively assent. That naturally raises the tantalizing possibility of “death” – not just delay – by presidential inaction: May a President kill a Bill by doing nothing? Even this cursory reading of Article 111 demonstrates its invasive potential. And surely this makes its “forgotten” stature all the more puzzling.

The amnesia has a long history. It began in the Constituent Assembly itself. Unlike many other provisions of the Constitution, Article 111 in its draft form commanded little comment or criticism. Members barely noticed it. In fact, the original draft of the provision was even more skewed in favour of the President. The proviso was differently worded: “Provided that the President may, not later than six weeks after the presentation to him of a Bill for assent return the Bill … to the House with a message requesting that they will reconsider the Bill or any specific provision thereof, and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and the Houses shall reconsider the Bill accordingly”. This proviso offered a specific time line within which to return a Bill. However, it said nothing about the fate of returned Bills. In the Constituent Assembly, two changes were made. First, the specific period of “six weeks” was substituted with the more amorphous “as soon as possible”. B. R. Ambedkar, one of the principal architects of the Constitution, shepherded this amendment. Second, and more importantly, the proviso was elongated to explain the fate of Bills reconsidered by the two Houses and thereafter returned to the President. L. N. Mishra proposed that the following words be added: “if the Bill is passed again by the House with or without amendment and presented to the President, the President shall not withhold assent therefrom”.  Without these words, the proviso, he argued, was “incomplete and inconclusive”. The Constituent Assembly agreed, and voted it in. With two amendments and no further discussions, members, it seems, forgetfully voted Article 111 into the Constitution.

The provision, though, did not remain forgotten for long. Sharp disagreements erupted over constitutional provisions even before the ink had dried on the newly inaugurated Constitution. Ironically, Article 111 was in the centre of that political storm. In July 1950, Rajendra Prasad, India’s first President, wrote to Jawaharlal Nehru, India’s first Prime Minister, questioning elements of the Bihar Zamindari Abolition Bill (a proposed law on land redistribution) and signalling his reluctance to sign it. He was concerned about the inadequacy of compensation for those whose lands effectively stood nationalised. Nehru’s Cabinet pondered over the matter, and decided that the compensation scheme provided for in the Bill was fair. Prasad persisted. He wrote to Nehru again asking that it be delayed so that the relevant ministries could reconsider his “strong convictions” on the matter.  But when Nehru threatened to resign, he gave in. He assented to the Bill along with a comment noting his disagreement. But the second – and more protracted – battle came in September 1951 when Nehru sought to reform Hindu family law by legislation. Prasad immediately made his objections to the Bill known, suggesting to Nehru that he reserved the “right to examine on its merits” and take measures “consistent with the dictates of [his] conscience”.  Alarmed by the likelihood of presidential obstruction to a set of reforms dear to him, the Prime Minister wrote to the President arguing that the latter had no “authority to go against the will of Parliament”. Clearly, Nehru read Article 111 as a “routine” provision; the President was to rubber-stamp his assent on Bills without applying his mind. And he lined up a battery of lawyers to make the same point on his behalf. Eventually Prasad gave in. Nehru’s overwhelming victory in 1952 (in India’s first general elections) meant that the President could no longer press his personal objections; Nehru had the people on his side. A little noticed provision in the Constituent Assembly effectively became the source of India’s first major constitutional controversy.

But once Prasad folded, the provision too, it seems, folded with him. It would take almost 40 years before Article 111 would be the source of controversy. It was 1987. The two Houses of Parliament enacted the Mail Interception Bill which among other things gave the executive extensive powers to intercept personal communication. President Zail Singh was unimpressed. The provisions of the Bill, he felt, violated the right to privacy. He sat on it. On two occasions, he informally suggested certain changes to it.  When nothing came of those efforts, he simply sat on the matter indefinitely. The President killed the Bill by sheer inaction. Article 111 reared its head again; and the possibilities of that provision were on full constitutional display.

The most recent controversy involving Article 111 came in 2006. It had to do with the Office of Profit Bill, 2006. The two Houses of Parliament hurriedly enacted a self-serving piece of legislation that protected members from disqualification with retrospective effect. Unsurprisingly, when it reached President A. P. J. Kalam, he took his time. He consulted with constitutional experts and wrote back to the two Houses, suggesting that the Bill be reconsidered. This was the first time a Bill was vetoed and formally returned. The Manmohan Singh Government, however, chose not to pay heed to those suggestions. The same Bill was re-enacted and sent back to the President. This too was new. Naturally, never before was a President confronted with a “returned” Bill. Did President Kalam have the authority to simply sit on the returned Bill indefinitely à la Zail Singh? The answer remains unclear. After more than a fortnight of tantalizing suspense, Kalam relented.  He made – what he later described as – the “toughest” decision of his presidential term and signed the Bill into law.

These three controversies attest to the potentials of Article 111. Under right circumstances, it may be the source of great unease for a government.  And yet, remarkably little has been said about it in scholarly literature. It remains poorly read and poorly understood – in fact almost forgotten.  The amnesia though hasn’t served India well. This must change. There is much to be gained by engaging the President on debates on parliamentary legislation; Article 111 needs to be resurrected. In my next posts, I shall turn to the existing analyses (the little that exists anyway), explore their inadequacies and offer an alternative reading – one that enlivens the provision and renders the President relevant to the project of parliamentary lawmaking.

Presidential Ordinances in India: An Analysis

India has a parliamentary democracy. Ordinarily, laws are enacted by Parliament. But India’s Constitution also provides for an exception; namely, Article 123. It says that the President may promulgate ‘ordinances’ if at least one House of Parliament is not in session and ‘he is satisfied that circumstances exist which render it necessary for him to take immediate action’.

Five things about this exception are worth noting. In keeping with India’s Westminster credentials, the power to promulgate ordinances is exercised by the Council of Ministers; the latter decide if ordinances are necessary. Presidents formally promulgate them. They enjoy some discretion, the precise scope of which still remains unclear. Second, ordinances may be promulgated ‘except when both Houses of Parliament are in session’. That is, it may be done even if either the Lower House or the Upper House of Parliament is still in session. Third, ordinances are limited to circumstances when it is necessary to take ‘immediate action’. They are predicated on some form of legislative urgency and, unlike parliamentary legislation, require additional justifications. They cannot be promulgated merely because the Council of Ministers so desire. Fourth, and most importantly, ordinances are like parliamentary legislation; they have the ‘same force and effect’. They are not rules, orders, by-laws or delegated legislation of some kind. Rather, they are legislation proper. Consequently, there are no substantive limitations. Presidents are competent to do through ordinances all those things Parliament may achieve through Acts. Fifth, ordinances are not permanent. Unless converted into Acts through the usual legislative procedure, they ‘ceases to operate’ six weeks from the day parliamentary sessions resume.

This vesting of original legislative power on the executive is perhaps anomalous, but not necessarily radical. Under Article 123, Parliament, after all, retains final authority. It may approve ordinances or reject them. But that is a mistaken view. After nearly 65 years of use and abuse, interpretations and amendments, Article 123 stands transformed. It effectively functions like a second, or an alternative Parliament in India.

Take the first two conditions, i.e. the conditions that must be satisfied before Presidents may take recourse to ordinances. At least one House of Parliament should not be in session. But who decides whether Parliament is in session, or should be in session? India’s Supreme Court has taken the view that parliamentary calendar is outside the scope of judicial review. Minsters along with the Speaker and the Opposition must decide when and how frequently Parliament should convene. If both Houses are in session, can the Government simply prorogue one House to make an ordinance possible? The Supreme Court has said yes. Consequently, the executive is the sole judge of when the Houses of Parliament are in session, or when they should be in session. The Court will not review this matter. The second condition has attracted a similar fate. Presidents must be satisfied that ‘immediate action’ is necessary.  In 1970, the Supreme Court held that Governments are the sole judge of ‘necessity’; the courts will not get into this question. In other words, when a President on the advice of Ministers concludes that an ordinance is necessary, legally speaking, that is the end of the matter. He or she may promulgate an ordinance for any reason whatsoever, and that is valid. The two pre-conditions, therefore, are not really conditions in any meaningful sense of the term.

What happens when Parliament resumes? An ordinance may become an Act of Parliament. That is the best case scenario for the Ministers. But it may also be voted down. Ministers are also authorised to withdraw ordinances before they are voted in Parliament. Finally, ordinances may lapse; they may ‘cease to operate’ because Parliament takes no action on a given ordinance. Now say that an ordinance is presented before Parliament and it is voted down. Can the executive re-promulgate the same ordinance? In 1987, the Supreme Court answered in the affirmative. While re-promulgation is generally invalid, it may be constitutional under certain – mostly unspecified – circumstances. That judgment effectively makes a Parliamentary vote on ordinances redundant. Irrespective of whether Parliament wants that law or not, the executive can keep the ordinance in force simply by re-promulgating it.

Finally, what happens if Ministers stop re-promulgating a failed ordinance, and allow it to lapse? Like I mentioned earlier, it ‘ceases to operate’. But what does that mean? Imagine a situation where an ordinance was in effect for, say, six months. During that period many actions would have been taken under the ordinance. What happens to all those actions? Do they also ‘cease to operate’? In 1964, the Supreme Court said no; the actions do not get wiped out. All actions initiated or completed during the time an ordinance is validly in force remain permanently valid. What this means is that even if an ordinance fails, it can produce permanent legal effects. Consider an ordinance that repeals an Act, and then ‘ceases to operate’. If the Supreme Court is correct, it implies that the repeal by the Ministers shall become permanent. That is, by any definition, a radical outcome.

Taken together, these decisions imply that the President, acting on the advice of the Council of Ministers, may promulgate ordinances at any time for any reason. More importantly, such ordinances can produce permanent changes in the law even if they fail. Article 123, as a result, has morphed into a second Parliament, and more importantly, renders India’s ‘normal’ Parliament nearly redundant. Compared to the ‘cumbersome’ method of making laws through Parliament, ordinances are easier and quicker; they require neither debates nor votes. It should therefore come as little surprise that 11 ordinances have been promulgated on average every year since 1950. Article 123 is a handy legislative tool for the President, and has been abused more than it has been properly used.