Parliament is once again under attack. The promulgation by the President of an Ordinance empowering it to withhold the report of any Inquiry Commission from Parliament has been rightly denounced by Mr L.K. Advani, Prof Madhu Dandavate, Mr. H.N. Bahuguna, Mr P. Upendra and other Opposition leaders. We have had Ordinance and, indeed, even Ordinance Raj before. But never before has the attack by Government been so brazen. The Government’s ill-advised virtually amounts to a slap in the face of Parliament. Strong words undoubtedly. However, nothing else sums up more sharply what appears to have been done without due thought and consideration. The Opposition leaders have appropriately drawn attention to the fact that the Ordinance was promulgated a day after the Rajya Sabha adjourned sine die at the conclusion of its budget session. Surprisingly, they have over-looked a material fact. The Ordinance was promulgated well before the Rajya when the President signed the Ordinance. It had only adjourned sine die, which means indefinitely.
The Union Government’s increasing resort to ordinances over the years has been bad enough. Personally, I have denounced it time and again. But what has come to pass now establishes a new low in the Executive’s arbitrary conduct vis a vis the Legislature and its contempt for Parliament. The Constitution, it may be recalled, empowers the President to promulgate Ordinances and rule by executive fiat, an unfortunate colonial legacy of the British Raj. However, this power was to be exercised only in an “emergency” and for dealing with that particular situation, to quote Dr Ambedkar, the father of the Constitution. What is more, the Ordinance was to be issued when Parliament was not in session. In the present case, there was no emergency of any kind. Moreover, Parliament was still in session since the Rajya Sabha had not been prorogued when the Ordinance was issued on May 15. Some Congress-I MPs argue that the Government was within its right to do what it has done since the Lok Sabha was prorogued on May 12. But they forget that the Lok Sabha by itself is not Parliament under the Constitution. Parliament comprises both the Lok Sabha and the Rajya Sabha.
Top Government circles put forward an interesting interpretation of Article 123(1) of Chapter III of the Constitution which relates to the Legislative Powers of the President. This Article reads: “If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.” They argue that the Government is barred from promulgating an Ordinance only “when both Houses of Parliament are in session.” In other words, the Government would be acting within its powers even if one House was in session. Nevertheless, one fact stands out even if this interpretation were to be accepted. In such a case, the Government, according to Mr S.L. Shakdher, former Secretary-General of the Lok Sabha, should have brought a bill before the one House in session, in this case the Rajya Sabha, and sought its approval for issuing the Ordinance since the Lok Sabha was not in session. The Government would then havecarried out the minimum formality of at least taking the sitting House into confidence — and acting in accordance with basic democratic norms.
Not only that. The Government has, in fact, committed contempt of Parliament under the Commissions of Inquiry Act. This Act requires the Government to place a copy of the Commission’s report before Parliament within six months of its receipt. The Thakkar Commission submitted its first interim report on November 19 last. Six months ended on May 19. The Government should, therefore, have presented the report to the Lok Sabha and the Rajya Sabha before the two Houses adjourned sine die on May 8 and May 13 respectively, knowing full well that they would not be meeting again until sometime in July or August for the monsoon session. The Ordinance now issued does not protect the Executive’s failure to comply with the Inquiry Commission’s Act. Importantly, the situation did not arise suddenly, out of the blue. It was clearly developing once Mr P.N. Lekhi, Defence Counsel for Satwant Singh in the Indira Gandhi murder case had asked for a copy of the Thakkar Commission’s interim report in the interest of justice. The Government had thus enough time to bring the matter before Parliament and to seek its consent in withholding any given report.
In promulgating the Ordinance, the Government has erred on two other counts. First, it has sought to cut at Parliament’s inherent and time-honoured right: the right to information. It is this which enables Parliament to hold the Government accountable and makes it truly sovereign. Moreover, it is this right which makes the question-hour in Parliament all important and the Westminster system democracy superior to the other forms and the Presidential system. Under this system, any member of Parliament can ask the Prime Minister any question on the floor of the House. The right to information gives the office of the President tremendous power even if the Constitution requires him to act in accordance with the advice of his Council of Ministers. Winston Churchill is said to have asked Lord Mountbatten only one question when the latter sought his advice about whether or not he should accept Governor-Generalship of India following independence: “Have you the right of information?” When Mountbatten replied yes, Churchill said: “Fine. Go ahead.” India’s President continues to enjoy the same right. Alas, successive Presidents have neither understood this power, nor been bold enough to exercise it.
Second, it mindlessly ignores the entire background of the Inquiry Commission’s Act and the raison detre which obliges the Government to submit reports of enquiries to Parliament within six months. The Inquiry Commissions Act stemmed from Parliament’s inherent right to information and its desire to have before it authentic and trustworthy information to enable it to act. Time and again, issues came to be raised on the floor of the House on the basis ofinformation available to Members of Parliament. Time and again, this information was contested by the Government when Ministers were sought to be pushed into the dock. It was then felt that whenever necessary a proper enquiry should be held and reliable facts brought before Parliament to enable it to judge an issue objectively and impartially. It was also felt that the Commissions of Inquiry should be manned by persons who could be trusted to function independently and impartially. This brought in the judiciary and, more especially, the Supreme Court Judges, both sitting and retired. Thus the entire exercise was intended for the benefit of the country’s sovereign Parliament, not of theGovernment.
The Government’s action in bringing forward the latest Ordinance thus goes against the very basis of a parliamentary democracy and thecountry’s sovereign Parliament. What makes matters unacceptable is that Parliament’s inherent right to information is sought to be taken away arbitrarily by the Executive in regard to crucial matters in a blanket form and behind its back. Situations could arise when the Government at the Centre could genuinely feel that the report of a Commission of Inquiry should be withheld from Parliament in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states and public interest. These could surely be tackled without resort to the objectionable and sweeping Ordinance. Parliament could, for instance, always be approached by the Government in a specific case to permit it to withhold the report of an Inquiry Commission. In such a case, the Government could convince Parliament of the genuineness of its demand openly — or by taking the Speaker and top Opposition leaders into confidence in the Speaker’s Chamber. Such a denial would then be voluntary, not imposed.
Sadly, the latest assault on Parliament has come at the end of a session which saw a renewed decline of both the Houses. Once again, Lok Sabha votedbudgetary demands of sixteen Ministries and Departments totalling thousands of crores of rupees without any discussion making a mockery of the system. Lamentably, there was no sign of any movement towards the much-needed Committee System, patiently advocated by the Speaker and agreed to in principle by the Prime Minister. The President’s address to both Houses on February 20 made several promises. Many were not kept. The President, for instance, announced: “Government have carried out an indepth analysis of our family planning programmes. Profiting from the experience of the past, a more effective strategy for family planning is being worked out and will be announced shortly.” No such announcement was made. Worse, the demands of the Health and Family Welfare Ministry were not discussed. Again, the President spoke eloquently about administrative reforms and a concrete agenda for action. Here, too, there was neither any concrete agenda nor any discussion on the demands of the Ministry of Personnel, Public Grievances and Pensions.
Many have expressed disappointment over the Ordinance, especially since the need of the hour is to strengthen and nurse India’s democratic institutions back to robust health. They ask: What can or should be done? The answer is not far to seek. Clearly, the latest Ordinance constitutes a grave challenge to Parliament and its inherent power. Parliament must, therefore, seek the earliest opportunity to debate this vital issue and cry a halt to its denigration. Understandably, few in the Congress-I are likely to raise their voices. Leaders of the Opposition should call on the Speaker, Mr Bal Ram Jakhar, and suggest an emergency session of the Lok Sabha to thrash out the issue. They should also meet the Prime Minister in his capacity as the Leader of the House and seek a satisfactory solution. Fortunately, Mr Rajiv Gandhi has expressed himself in favour of making Parliament both effective and purposeful. The Ordinance must be revoked at the earliest. Either Parliament is sovereign or it is not. We cannot have it bothways. Parliament, too, functions in the best public interest.– INFA
