As a very young lawyer, I suffered from the delusion that I knew the law and thought it should operate on the basis of what was written in the textbooks. I once watched my senior argue an obviously bad case in court, knowing well that the judge would laugh him out of court. Somehow my senior wangled an adjournment from the judge, and outside the court, he cackled at his great escape. I turned to a slightly older junior in the chamber and asked why my senior was so happy because the matter would so obviously be lost on the next occasion. My chamber mate looked at me pityingly and said: “Oh, you don’t know the singing horse story?”
In response to my puzzled look, he told me the story of a man who was being executed in response to a king’s orders. On the chopping block, he looked at the king and said, “O, king you may kill me, but you must know that I can make horses sing.” The king asked how he could do that. To this the man replied that he needed a year to train a horse. The king had him freed, and set him up in a house next to the royal stables and provided him a horse to train. The man’s friend asked him, “You know that there are no singing horses, why did you promise it to the king? What will you do now?” The condemned man replied, “A lot can happen in a year, I may die a natural death and so may the king; the king may not remain the king, a general amnesty for all may be announced, the king may change his mind about executing me anyway, and for all you know, the horse may actually sing. Let me enjoy this year that I have.”
Since that day, I have always been aware of the episodic nature of a lawyer’s work, which makes lawyers delay the inevitable in the hope that the morrow may yet bring about a change of circumstances that render the insoluble merely intractable.
As I view the central government’s recent, short-term legislative fixes, like the ordinances on land acquisition or the notification on the Lieutenant Governor’s powers in Delhi, I keep wondering whether it is being advised by lawyers who believe in the singing horse theory. A strong government, with an absolute majority of 282 MPs in the Lok Sabha, should be able to sail through its legislative business in Parliament. The sight of it bumbling and manoeuvring past Parliament through the ordinance and notification route makes an outside observer wonder whether it is a government that prefers to rule by diktat.
Fraud of the Constitution
An ordinance is temporary legislation that operates for a limited period of time but must be approved by Parliament within six weeks of its assembly. The government of Bihar in the 1970s tried to bypass the legislature by continually re-promulgating ordinances, while ensuring all along that the legislature never met for more than six weeks. The Supreme Court, in DC Wadhwa’s case, clamped down on this practice by calling it a fraud on the Constitution. We are now seeing something similar beginning at the central level.
The 2013 law on land acquisition was supported by most parties in Parliament, including the Bharatiya Janata Party which was then in opposition. When the BJP came to power on its own, and when its core industrial constituency perceived the new law to be a hindrance in their plans for growth, the government agreed to gut the law by amending it. However, instead of introducing an amendment in Parliament, it chose in December 2014 to first decree an amendment by ordinance. The ordinance was seen as a temporary fix till such time as parliamentary managers could reach out to the non-Congress opposition to ensure the amendment’s safe passage through the Rajya Sabha.
The Delhi rout of February 2015 changed all that. Land acquisition for industry became a hot potato which even the government’s allies were disinclined to touch. The time came for the ordinance to be replaced by an Act of Parliament. In the bill which passed through the Lok Sabha in March, several amendments were made to mollify public opinion. Despite these amendments, it appeared that the U-turn would still run into trouble in the Rajya Sabha. Forced by events, the government had to repeat the old Bihar trick of re-promulgating the ordinance for a second time in April. The hope is that the monsoon session may yet see a change of heart.
In the meanwhile, the BJP has tried to woo J Jayalalithaa at her fifth oath-taking as chief minister, in the fond hope that her party’s MPs in the Rajya Sabha would support government legislation. Legislative deals that could have been struck when a new government with an absolute majority proposed it are now less likely to happen with an old government that is perceived as having lost political capital. The ordinance as a temporary band aid is on its way to being a permanent cast on a fractured polity. It is quite likely that a third re-promulgation of the same ordinance may see the courts using the doctrine in the DC Wadhwa case to strike down the amendments.
The notification route
The same pattern is discernible in the May 21, 2015 notification of the Home Ministry to ostensibly clarify that Delhi “services” fall within the scope of the Lieutenant Governor’s powers. The notification in its preamble reads:
In its operative part, the notification reads:
Shorn of legal gobbledegook, the notification correctly asserts that Delhi is a renamed union territory, where the legislature could not constitutionally legislate on the subjects of public order, land and police. However, it is incorrect to assert that all subjects upon which the legislature of a state has powers to operate are not available to the National Capital Territory, if such powers have previously been exercised by the Centre. The reasoning is based on the words “in so far as any such matter is applicable to Union Territories” which appear in Clause 3(a) of Article 239AA of the Constitution of India. Because Delhi has no public service commission and its officers come from a cadre shared with the union territories, the notification assumes that the power of regulating “services” originally exercised by the Centre continues to be vested in the central government, despite Entry 41 of the State List, which deals with the State Public Services and the State Public Service Commission.
Usurping powers
This assumption is plainly wrong because a constitutional amendment cannot be further amended by a mere notification. The Constitution specifically demarcates the three subjects over which the Delhi legislature has no jurisdiction – it does not reserve a fourth subject. Services under the state are not claimed to fall within the reserved subjects of public order or police. A fourth subject is by notification being sought to be added to the only three reserved by the Constitution. The notification also asserts suzerainty over subjects that have been already acted upon by the Union, prior to the 69th constitutional amendment that brought into existence the National Capital Territory of Delhi. Thus, the notification is a usurpation of powers that are specifically vested in the government of the National Capital Territory, in the same manner as they are vested in other state governments.
I expect that the matter of the notification, will soon hit the courts. I also anticipate that the courts are unlikely to hold that a constitutional provision can be amended, clarified or declared by mere executive notification. However, court battles are long, arduous and subject to full due process. The ultimate result may be reasonably foreseen, but unanticipated changes in circumstances cannot be ruled out. For all we know, the effort might be to goad people into premature agitation and resignation, to bolster a claim that electoral victory does not translate into effective administration.
Now as a much older lawyer, I see that works of constitutional import are also sometimes undertaken on the temporary fix principle, which postpones the ultimate resolution of the issue. Sufficient unto the day and the evil thereof, is a principle of theology that is now firmly entrenched in the politics of the day. Who knows, people may seriously think, that horses may yet one day be taught to sing.
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In response to my puzzled look, he told me the story of a man who was being executed in response to a king’s orders. On the chopping block, he looked at the king and said, “O, king you may kill me, but you must know that I can make horses sing.” The king asked how he could do that. To this the man replied that he needed a year to train a horse. The king had him freed, and set him up in a house next to the royal stables and provided him a horse to train. The man’s friend asked him, “You know that there are no singing horses, why did you promise it to the king? What will you do now?” The condemned man replied, “A lot can happen in a year, I may die a natural death and so may the king; the king may not remain the king, a general amnesty for all may be announced, the king may change his mind about executing me anyway, and for all you know, the horse may actually sing. Let me enjoy this year that I have.”
Since that day, I have always been aware of the episodic nature of a lawyer’s work, which makes lawyers delay the inevitable in the hope that the morrow may yet bring about a change of circumstances that render the insoluble merely intractable.
As I view the central government’s recent, short-term legislative fixes, like the ordinances on land acquisition or the notification on the Lieutenant Governor’s powers in Delhi, I keep wondering whether it is being advised by lawyers who believe in the singing horse theory. A strong government, with an absolute majority of 282 MPs in the Lok Sabha, should be able to sail through its legislative business in Parliament. The sight of it bumbling and manoeuvring past Parliament through the ordinance and notification route makes an outside observer wonder whether it is a government that prefers to rule by diktat.
Fraud of the Constitution
An ordinance is temporary legislation that operates for a limited period of time but must be approved by Parliament within six weeks of its assembly. The government of Bihar in the 1970s tried to bypass the legislature by continually re-promulgating ordinances, while ensuring all along that the legislature never met for more than six weeks. The Supreme Court, in DC Wadhwa’s case, clamped down on this practice by calling it a fraud on the Constitution. We are now seeing something similar beginning at the central level.
The 2013 law on land acquisition was supported by most parties in Parliament, including the Bharatiya Janata Party which was then in opposition. When the BJP came to power on its own, and when its core industrial constituency perceived the new law to be a hindrance in their plans for growth, the government agreed to gut the law by amending it. However, instead of introducing an amendment in Parliament, it chose in December 2014 to first decree an amendment by ordinance. The ordinance was seen as a temporary fix till such time as parliamentary managers could reach out to the non-Congress opposition to ensure the amendment’s safe passage through the Rajya Sabha.
The Delhi rout of February 2015 changed all that. Land acquisition for industry became a hot potato which even the government’s allies were disinclined to touch. The time came for the ordinance to be replaced by an Act of Parliament. In the bill which passed through the Lok Sabha in March, several amendments were made to mollify public opinion. Despite these amendments, it appeared that the U-turn would still run into trouble in the Rajya Sabha. Forced by events, the government had to repeat the old Bihar trick of re-promulgating the ordinance for a second time in April. The hope is that the monsoon session may yet see a change of heart.
In the meanwhile, the BJP has tried to woo J Jayalalithaa at her fifth oath-taking as chief minister, in the fond hope that her party’s MPs in the Rajya Sabha would support government legislation. Legislative deals that could have been struck when a new government with an absolute majority proposed it are now less likely to happen with an old government that is perceived as having lost political capital. The ordinance as a temporary band aid is on its way to being a permanent cast on a fractured polity. It is quite likely that a third re-promulgation of the same ordinance may see the courts using the doctrine in the DC Wadhwa case to strike down the amendments.
The notification route
The same pattern is discernible in the May 21, 2015 notification of the Home Ministry to ostensibly clarify that Delhi “services” fall within the scope of the Lieutenant Governor’s powers. The notification in its preamble reads:
“Sub-clause (a) of clause (3) of article 239AA also qualifies the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories…. As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services. Thus, ‘Services’ will fall within this category…. It is well established that where there is no legislative power, there is no executive power since executive power is co-extensive with legislative power. And whereas matters relating to Entries 1, 2 & 18 of the State List being ‘Public Order’, ‘Police’ and ‘Land’ respectively and Entries 64, 65 & 66 of that list in so far as they relate to Entries 1, 2 & 18 as also ‘Services’ fall outside the purview of Legislative Assembly of the National Capital Territory of Delhi and consequently the Government of NCT of Delhi will have no executive power in relation to the above and further that power in relation to the aforesaid subjects vests exclusively in the President or his delegate i.e. the Lieutenant Governor of Delhi”
In its operative part, the notification reads:
“The President hereby directs that –
(i) subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect of matters connected with ‘Public Order’, ‘Police’, ‘Land’ and ‘Services’ as stated hereinabove, exercise the powers and discharge the functions of the Central Government, to the extent delegated to him from time to time by the President.
Provided that the Lieutenant Governor of the National Capital Territory of Delhi may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of ‘Services’ wherever he deems it appropriate.”
Shorn of legal gobbledegook, the notification correctly asserts that Delhi is a renamed union territory, where the legislature could not constitutionally legislate on the subjects of public order, land and police. However, it is incorrect to assert that all subjects upon which the legislature of a state has powers to operate are not available to the National Capital Territory, if such powers have previously been exercised by the Centre. The reasoning is based on the words “in so far as any such matter is applicable to Union Territories” which appear in Clause 3(a) of Article 239AA of the Constitution of India. Because Delhi has no public service commission and its officers come from a cadre shared with the union territories, the notification assumes that the power of regulating “services” originally exercised by the Centre continues to be vested in the central government, despite Entry 41 of the State List, which deals with the State Public Services and the State Public Service Commission.
Usurping powers
This assumption is plainly wrong because a constitutional amendment cannot be further amended by a mere notification. The Constitution specifically demarcates the three subjects over which the Delhi legislature has no jurisdiction – it does not reserve a fourth subject. Services under the state are not claimed to fall within the reserved subjects of public order or police. A fourth subject is by notification being sought to be added to the only three reserved by the Constitution. The notification also asserts suzerainty over subjects that have been already acted upon by the Union, prior to the 69th constitutional amendment that brought into existence the National Capital Territory of Delhi. Thus, the notification is a usurpation of powers that are specifically vested in the government of the National Capital Territory, in the same manner as they are vested in other state governments.
I expect that the matter of the notification, will soon hit the courts. I also anticipate that the courts are unlikely to hold that a constitutional provision can be amended, clarified or declared by mere executive notification. However, court battles are long, arduous and subject to full due process. The ultimate result may be reasonably foreseen, but unanticipated changes in circumstances cannot be ruled out. For all we know, the effort might be to goad people into premature agitation and resignation, to bolster a claim that electoral victory does not translate into effective administration.
Now as a much older lawyer, I see that works of constitutional import are also sometimes undertaken on the temporary fix principle, which postpones the ultimate resolution of the issue. Sufficient unto the day and the evil thereof, is a principle of theology that is now firmly entrenched in the politics of the day. Who knows, people may seriously think, that horses may yet one day be taught to sing.
