The Ordinance Factory

The ordinance-mania is back in fashion. The recourse to amending the law or writing fresh legislation is a tempting escape for politicians from constitutional checks and balances.

I must begin this week’s National Interest with a note of apology. Who, but the most incorrigible party-pooper would begin an article to be published on new year’s eve with a reference to the Emergency? But it is unavoidable precisely because it is the holiday season and the well-known nexus of politicians, builders and corrupt civic officials are trying to take advantage of that to twist the law and where they cannot, write fresh laws to legitimise their own crimes of the past.

The page from The Indian Express Emergency scrapbook is a cartoon by the venerable Abu Abraham. This was the time when Indira Gandhi was issuing a flurry of ordinances to overturn existing laws, to give herself sweeping powers, fight off her insecurities and to short-circuit the entire system of democratic checks and balances. The then president, Fakhruddin Ali Ahmed, was, of course, more than willing to sign, with the greatest alacrity, any ordinance she sent to him, at any time of the day or night. So this Abu cartoon showed Ahmed in his bath-tub, handing out a pen, and a piece of paper which he had ostensibly signed to somebody through a half-ajar door and saying, “If there are any more ordinances can they wait a bit?” Or words to that effect.

We have now come a long way since the Emergency. This is the coalition age and the ruling party does not even hold one-third of the strength of Parliament. But the ordinance-mania is back in fashion in the same dangerous way. Or there are at least early signs of it, and unless we raise the alarm now we are going to see one of these Emergency phenomena repeated. There will, however, be one crucial difference. The Emergency ordinance-mania was one party’s exercise of brute power through a sweeping majority. Others were opposing it, even from jail. What happens now could be an outcome of total connivance among our entire political class.

The immediate provocation for this is the truly shocking decision by the Congress high command to set up a party panel to look into the prospects of issuing an ordinance amending the law whereby all ‘ or at least most of the building violations and land-grab cases in the capital will be “legalised.” This is inspired by the party’s success in getting away (so far, unless the judiciary strikes it down) with a similarly self-serving ordinance in Mumbai. That piece of legislation “regularises” 800-odd buildings earmarked for demolition under Bombay High Court orders in the suburb of Ulhasnagar, on the incredible argument that the locality was a “refugee” colony, inhabited by Sindhis who came in from Pakistan in the wake of Partition and, therefore, deserved special treatment. Nearly six decades after Partition, we laugh each time Musharraf says Kashmir is an unfinished agenda of Partition. We now find politicians in Maharashtra also discovering their own unfinished agendas of Partition. This totally cynical, immoral and self-destructive precedent is obviously being studied closely by crooked politician-builder-bureaucratic mafias around the country. Even in Delhi, for example, where large parts of the new city have been built by former refugees (Punjabis, in this case) the same argument could be used to justify the loot and grab of recent years.

The only problem in Delhi is, properties identified for violations and land grab are scattered all over. Further, an ordinance has to be issued by the Central government and an act so cynically self-serving will test both the conscience as well as the nerve of Manmohan Singh. And even if the PM were to be arm-twisted into producing it by his own party men, many of whom, as the ongoing investigation in this paper shows, are themselves involved in the most wanton building violations, it will test President Abdul Kalam. Will he, then, just follow in the entirely forgettable footsteps of Fakhruddin Ali Ahmed and sign on the dotted line, on the excuse of being a mere “titular” president, or will he bring to bear his unique moral authority to send it back? It is by now quite obvious that he is different and the last thing the UPA government would want is a presidential rebuff. Besides, any such legislative arm-twisting will have to survive severe judicial scrutiny. Politicians should remember that the country’s highest court had judged voluntary disclosure of income schemes (VDIS) as condoning wrongdoing. VDIS is history now. What will happen if an ordinance legitimising land grab is subjected to similar judicial assessment?

The recourse to amending the law or writing fresh legislation is a tempting escape for politicians from constitutional checks and balances. It becomes even more tempting when there is political consensus, howsoever cynical, to do so. The recent constitutional amendment to provide for caste-based reservations in unaided private institutions is a case in point. It was drafted with the singular purpose of overturning a Supreme Court judgment and was passed in record time by a Parliament which delays other perfectly reasonable legislation endlessly by either putting it in the committee orbit or simply because it conducts so little business because of boycotts and adjournments. On reservations for private institutions, the consensus came from the desperation not to be seen to be doing anything to annoy caste vote banks. At least in this case the motive was entirely political and you might just allow the political class that much leeway. But the proposed Delhi ordinance is in a different category altogether, as is the one passed by Maharashtra government on Ulhasnagar.

Here, the motivation is entirely to use the power of the legislature to legitimise your own dark deeds, to legalise your own, deliberate, pre-meditated crimes committed on the presumption that since you have clout, the law will never catch up with you. And now that the law has done so, through the intervention of the higher judiciary, use brute legislative muscle to tell the courts where to get off. So no surprise that on a law like this, meant to benefit no more than 18, 000 property-owners in a city of 1.4 crore, the Congress and the BJP will join hands. This, when the two will not even agree to seek each other’s cooperation to pass perfectly sensible legislation on banking and pension reform that both entirely agree on in principle. When it comes to the larger public good, ideology comes in the way. When it comes to legitimising personal gain, land-grab and law-breaking, ideology is so easily junked.

What is truly amazing is the way the high commands of both the Congress and BJP have allowed this nonsense to go on. This was an opportunity for at least one party to do a mea culpa. Say you regret that some of your local leaders have been indulging in these practices and direct them to demolish these forthwith. The popular mood in Delhi is not in favour of law-breakers and this would have been a sure-shot way to get a head start for future elections. Delhi is a small state and most politicians involved are very insignificant in the overall scheme of things for these national parties. But today both are losing this golden opportunity to demonstrate politics with a difference. The same verdict holds if the parties are hoping that making loud noises about the prospective legitimisation of illegal construction will create enough confusion to further slow down the pace of demolition. Threatening an ordinance has the same perceptional impact as passing one ‘ it shows the Congress and the BJP can join hands to legitimise their own leaders’ land-grabs and law-breaking. The two parties can be sure that the silent majority of Delhi’s voters is taking a firm note of it.