Ordinance to protect convicted legislators kicks up political storm

  • Satya Prakash, Hindustan Times, New Delhi
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  • Updated: Sep 27, 2013 04:13 IST

All eyes are on President Pranab Mukherjee these days. For, the final stamp of authority on the government’s move to reverse — through the ordinance route — a Supreme Court ruling on immediate disqualification of legislators convicted for at least two years will be his.

The Opposition — the BJP, Left parties, TDP and the Aam Admi Party, in particular — are already frothing at the mouth, asking Mukherjee not to promulgate the ordinance.

BJP leaders LK Advani, Arun Jaitley and Sushma Swaraj have already met Mukherjee to convince him that the move was unconstitutional.

Their logic: The government is trying to skirt Parliament, as it could not get the Representation of the People (Second Amendment) Bill, 2013 passed in the Rajya Sabha during the monsoon session.

Questioning the propriety of the move, jurist Fali S Nariman said it should never be a choice between the ordinance route and the bill-in-Parliament route.

He said, “A pending bill referred to a select committee cannot be converted into an ordinance since the bill requires a more matured consideration.”

Now, it seems the stakes are too high to ignore the ordinance route. If Mukherjee turns it down, Congress MP Rasheed Masood, convicted in a two-decade-old corruption case, could be the first to get disqualified as a legislator. Next in line could be RJD chief Lalu Prasad, who is awaiting a Ranchi court’s verdict in the fodder scam case.

Expectedly, the Congress itself appears to be divided on the issue. Party spokesperson Raj Babbar said on Tuesday that the ordinance was aimed at “protecting the dignity of the Constitution” while Digvijaya Singh thinks “it is always better to bring about a political consensus rather than pushing through an ordinance”.

The question being frequently asked: Is the government trying to protect convicted politicians through an ordinance? The answer is not an easy one.

Although the Constitution has empowered only the legislature to enact law, the President — under article 123 of the Constitution – has the power to promulgate ordinances during Parliament recess.


But the President has to have a clear conscience that the action is taken as the situation makes it absolutely necessary. Also, an ordinance has to be ratified by both Houses of Parliament. Else, it will get nullified six weeks from the reassembling of Parliament.

But unlimited power — easy and hassle-free — always attracts the ruler. Governments have, in the past, taken the short cut by getting the President or governors to promulgate ordinances.

In 1987, the Supreme Court went as far as terming the successive Bihar state governments’ attempt at governance through ordinances unconstitutional.

Now the ball is in Mukherjee’s court. Will he give his assent to the ordinance? Or, will he choose one of the other two options — sending it back or refusing to let his stamp be used?


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