Perpetual Ordinances in India - Part One

The fact that a thing such as "perpetual ordinances" exists should strike you as rather odd. Well, maybe not if you had the chance to glance through the Law Commission's recent reports on obsolete laws (or some news reports about the Law Commission's work). The Law Commission over a course of what are currently four reports (available here) has highlighted several ordinances created during the Second World War continue as valid laws today. Not only do I find it very interesting that pre-independence ordinances govern us today, but also the very idea of a perpetual temporary law strikes me as brilliant. I admit, it is quite common for India to have arcane laws which don't matter as you might be thinking. But these ordinances don't always fall into that harmless category: the 1944 Criminal Law (Amendment) Ordinance is actively used today in litigation to attach properties. Can this be legal? Well, yes. Should it be so? Honestly, No. Part one of this two part entry considers the history behind perpetual ordinances.

Brief Background

Ordinances are peculiar creatures of the law - conferring legislative powers on the executive head of state and blurring the dearly held separation of powers model. While some (including the current NDA government) would argue ordinances are essential to ensure the state machinery keeps running where parliament takes too long to deliberate. Others call this a convenient backdoor for the ruling government to enforce its decisions when it fails to convince in parliament. Perhaps to balance both views, most ordinances come with stipulated time limits. Ordinances in India both before and after 1950 came with an upper limit of six months, following which they would automatically be repealed.

Few would argue though about the necessity of swift decision-making in particular situations, such as war. It was during the Second World War that the Colonial Government introduced a mechanism for swift decisions in the India and Burma (Emergency Provisions) Act, 1940. The Act did not create any law, but did alter this idea of limited ordinances. Broadly, the six month limit on operation of ordinances was done away with for ordinances passed during a time frame set out by the Act. A hugely convenient measure in an era where legislation was the domain of the infrequent meetings of the Governor General in Council (as the 1935 Government of India Act had not been enforced in its entirety). 

A Story of Two Wars

This was by no means extraordinary. In fact, the British had done the same thing during the First World War with the Emergency Legislation Continuance Act, 1915. Barring linguistic differences, it is difficult to say that the laws pursue differing objectives. The 1915 Act recognised that "owing to the state of war existing between His Majesty the King Emperor and certain foreign powers it is expedient to provide for the continuance in this Act mentioned of the provisions contained in those ordinances". The normally temporary ordinances were made permanent "during the continuation of the present war and a period of six months thereafter" through Section 2 of the Act.

In the 1940 Act, there were no recitals barring the economical reference to this being "an act to make emergency provision with regard to the government of India and Burma". What was vastly different was the phrasing of provisions removing time limits over ordinances. Section 1(3) needs to be quoted at length:

Section 72 of the Government of India Act (which, as set out in the Ninth Schedule to the Government of India Act, 1935, confers on the Governor General power to make Ordinances in case of emergency) shall, in respects Ordinances made during the period specified in section 3 of this Act have effect as if the words: 'for the space of not more than six months from its promulgation' were omitted ....

What happens after 01.04.1946?
This period mentioned in Section 1(3) ran from 27.06.1940 till 01.04.1946. During that six year period, nearly 190 ordinances were brought into force. Would they continue to remain in force beyond six months after 01.04.1946, or would 190 laws lapse as the emergency for which they were enacted ceased to exist? This would have been a telling question, and unfortunately there is little material in the public domain on the deliberations that might have occurred on the subject then. Most of the material makes it appear that there were no discussions. What we have are court decisions, which we shall come to in the next post. But despite not having the deliberations, we do have clear evidence of their conclusions: out of the 190 laws 127 are reported as being allowed to remain in force after 01.04.1946. The others were specifically repealed over the course of time [see, Hans Raj Executive Legislation in Colonial India (1989) and Shubhankar Dam, Presidential Legislation in India (2015)]. 

Conclusion
I avoided discussing judicial opinion here to see whether one can arrive at this conclusion of retaining ordinances through independent reasons. Why would we need to retain ordinances made during the emergency created during Second World War after the emergency ceased. If these laws are useful - what stops a parliament from re-enacting them (as currently happens with ordinances)? The lack of any debate on those 190 odd ordinances in the subsequent parliament of independent India is astounding. I would argue that quick, context-laden, decisions, should be reviewed in a neutral setting. Further, given the peculiar war-focus of those war-time ordinances, it would be best for the default to be termination of those laws with there being need for specific retention. But none of this was done, and we have been left with the strange legacy of colonial executive decisions governing us today. I admit that my involvement in these issues might have biased me into thinking there are no independent reasons, which is why I'd love to have comments.