Now that the UPA government, some dissenting voices notwithstanding, has decided to brazen it out over the issue of the controversial ordinance to nullify the effect of the Supreme Court judgment in the matter of convicted lawmakers, all eyes are on President Pranab Mukherjee. Under the Constitution, the President can either agree with the ordinance and give his assent to it, thereby playing along with the UPA government, or return it to the Cabinet for reconsideration.
This ordinance could well define Mukherjee’s tenure, to be remembered either as a discerning president like A P J Abdul Kalam or as a forgettable one like his predecessor, Pratibha Patil.
Taking the first option, which is the easier way and is something that would please the Congress leadership — let’s not forget that till a year ago Mukherjee was a die-hard Congress leader — could be an obvious choice for the President, as many are saying. However, taking this option would leave him exposed to the charge that he didn’t rise to the occasion and ask his government to honour the principle of separation of powers as defined under the Constitution.
After all, it is a fact that the Supreme Court has settled the issue twice in less than three months. And Parliament is seized of the matter since the Bill — of which the ordinance is a copy — has been referred to the Standing Committee.
In the alternative, if President Mukherjee decides to send the file back for reconsideration, he will have reinforced the prestige of his august office. He can ask the government about the urgency behind the ordinance. As suggested by jurist Justice Rajinder Sachar, he can also ask if a law can be passed, leave alone an ordinance, on a subject or a clause that has been declared constitutionally invalid by the Supreme Court.
However, there is a third option too, something that would well and truly make Mukherjee stand apart — keep the file pending indefinitely. And, yes, he can sit on the file for howsoever long he desires, the same way the Government of India does with files of many legislations sent by non-Congress-ruled state governments.
Maneesh is Senior Editor (Legal Affairs), based in Delhi