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7 January 2017 Editorial


7 January 2017

Clamping down on ordinance raj

Both superior courts and constitutional functionaries have routinely deprecated the propensity of governments to take the ordinance route for mere political expediency. The temptation to use the power vested in the President and the Governors under Articles 123 and 213 of the Constitution is generally a result of one of the following three reasons: reluctance to face the legislature on particular issues, fear of defeat in the Upper House where the government may lack the required numbers, and the need to overcome an impasse in the legislature caused by repeated and wilful disruption by a vociferous section of the Opposition. The verdict of a seven-member Bench of the Supreme Court breaks new ground in highlighting the constitutional limitations on the cavalier resort to ordinances. The Supreme Court had already declared in 1986, in D.C. Wadhwa, that repeated re-promulgation of ordinances was unconstitutional. Now, in Krishna Kumar Singh v. State of Bihar, it goes deeper and concludes that the failure to place an ordinance before the legislature constitutes abuse of power and a fraud on the Constitution. It noted in this case that a 1989 ordinance by which the State government took over 429 Sanskrit schools in Bihar was promulgated several times until 1992, but not once tabled in the State Assembly.

The judgment widens the scope of judicial review of ordinances. The court can go into whether the President or Governor had any material to arrive at the satisfaction that an ordinance was necessary and to examine whether there was any oblique motive. The judgment will be welcomed by those who believe in constitutional propriety, legislative control over lawmaking and the larger ethical basis for the exercise of power in any circumstance. However, it is not always that the ordinance route can be neatly explained as a cynical move to privilege political expediency over parliamentary accountability. While contending that ordinances should be issued only to meet certain exigencies and under compelling circumstances, it is equally important to understand that disruption as a parliamentary tactic plays a significant role. A dysfunctional House sometimes constitutes a compelling circumstance in itself. Generally, it is the combination of Opposition obstructionism and government obstinacy in not making any concessions to those across the aisle that derails legislative business and leads to ordinances. The courts can only define the boundaries between the use and abuse of power, but it is up to parties in the legislature to observe the limits of constitutional propriety and show that they have both the time and the will to enact laws.

Dhoni: A remarkable captain

Mahendra Singh Dhoni is regarded as one of the country’s most dashing cricketers, but his flamboyance is founded, almost ironically, on an inexplicably cool and calculated head. There are no means of divining why he chose to relinquish India’s limited-overs captaincy when he did; his natural reserve ensures that his cards are almost always played close to his chest. In the context of where Indian cricket is at this juncture, it appears like an exceptionally clear-sighted decision, brave and selfless in equal measure. He has effectively said he will earn a place as a wicketkeeper-batsman. He has given the team management time to build to the next World Cup, in 2019; if he is not a part of that vision, he will not hold down a spot merely by virtue of being skipper. Given Dhoni’s standing, he is probably the only one who could have made that call. It is unlikely that any selection panel will have summoned the courage to drop him. While his glove-work has not dipped significantly — he remains a predatory presence behind the wicket — his aura as a finisher has dimmed. Although he is no less capable with the bat, the almost eerie certainty one had that he will get the job done has dissipated. With age — Dhoni turns 36 this July — the greats do not necessarily lose their skill. But the consistency of execution suffers.

The legacy Dhoni bequeaths Virat Kohli is a team secure in its skin, certain it can win from any position. There was no better captain in the game’s shorter forms than Dhoni during his time. He is the only skipper to have won all three major trophies — the World Cup, the World Twenty20 and the Champions Trophy. Michael Clarke and Brendon McCullum had greater attacking verve. They were certainly superior Test captains. But in the art of managing a finite innings, reading a contest’s rhythm and its tactical contours, Dhoni had no equal. He had an intuitive feel for what could happen and the ability to get the best out of his resources, however bare. His greatest strength was his nerve. Where others tried to finish things quickly to pre-empt panicking, he took games deep. He raised the stakes, knowing he would not blink before his opponent. Remarkably, he managed to transmit this sense of composure to his team. He asked his bowlers to relax and stick to the plan; the responsibility of the result was his to bear. Few cricketers have stayed in the present as successfully as he has. Fortunately for Indian cricket, his successor is every bit as impressive. Kohli, moreover, will have access, should he choose, to all of Dhoni’s considerable powers.


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