General Secretary
Finance and Economics Think Council
“Errors do not cease to be errors simply because they’re ratified into law”
The Constitution of India under Article 123 and Article 213 confers power upon president and governor respectively to promulgate ordinance on the aid and advice of council of ministers which has the same effect as ordinary laws. These ordinances can be issued when parliament is not in session and cover respective subject-matters provided under union, state and concurrent list on which parliament/assembly can make laws. Ordinance lapses unless approved by parliament within six weeks from beginning of the following session. However, the power to issue ordinance is not absolute, rather conditional on the fact that subject of ordinance requires immediate action and is based upon satisfaction of the president/governor. To ensure checks and balances, constitutional ethos requires separation of power among legislature, executive and judiciary, thus necessitating parliamentary approval within prescribed time frame while also considering the urgency of action. The provisions of the constitution have given ample liberal space to decision-makers to ensure flexibility and prevent constitution from being draconian-decree. Our constitution believes stiffness as weakness and flexibility as its strength, a principle which unknowingly gave the predatory political practices an option to play with it as per their whims and fancies.
Misuse since inception
Rarely one could have thought that the person proposing idealistic Objective Resolution for the constitution would malign it like anything after becoming the Prime Minister. Within tenure of 17 years, as many as 200 ordinances were passed by India’s first PM Pt. J L Nehru. To everyone’s amaze he still doesn’t lead the tally and is second to his own daughter Mrs. Indira Gandhi, who in her 16 years tenure passed the highest 208 ordinances flouting all the democratic norms and grossly undermining the spirits of constitution. Barring few, almost-all successive PMs including PV Narsimha Rao, H D Deve Gowda, I K Gujaral, Atal Bihari Vajpayee, Dr. Manmohan Singh and Narendra Modi used ordinance making power as parallel source of legislation thereby heavily assaulting constitutional norms and provisions. More than 700 ordinances have been passed overall within 73 years since independence. The brazenness with which present government is issuing ordinance and re-promulgating it reminds us of catastrophic days of Indira Gandhi’s dictatorial-premiership. During 2014-19, ratio of ordinances to bills was 3.5:10, which used to be 1:10 in first 30 years of independence and 2:10 in next 30 years. For ongoing 17th Lok-Sabha, ratio stands at 3.3:10. 10 ordinances in a year were issued during 16th Lok-Sabha tenure compared to 7.2 a year in UPA-I and 5 a year in UPA-II.
While some ordinances were indeed passed to smoothen obstacles posed by existing laws, most of them have been exercised as a tool to polish and brighten the image of respective governments, to please the corporate industrialist lobby and to serve some or the other vested interests. Surprisingly, there exist instances when even post-dated ordinance has been promulgated which itself is an oxymoron to the concept of ordinance that meant for subjects of immediate action, e.g., Demonetization Ordinance to take effect from future date. Some ordinances were issued in past just to honor the public-sentiments and outcry without delving-deep into the subject-matter. The hasty ordinance of death penalty for convicts of rape of children below 12 years after Kathua gang-rape having provisions lacking logical-reasoning and devoid of the solution to basic causes was just to please mass-appeal. Rampant practice of issuing bunch of ordinances just before the day of election reflects malicious intention to bypass parliament for political gains. About 10 ordinances were issued on the eve of 2019 general-election. Besides, issuance of ordinance soon after the prorogation and just before beginning of parliament-session has been commonly practiced in India that clearly implies disrespectful attitude towards people’s representation. Around 70% of total, i.e., around 500 ordinances have been passed over a span of 15 days before/after session of parliament. In a first since independence, country saw the passage of ordinance on enemy properties without even cabinet-clearance and re-promulgation of same ordinance five times in the last Lok Sabha tenure in complete -contravention of the convention. All these combined clearly show how light-weighed pen of the first citizen of India is benevolently (mis)used for signing documents that make mockery of democracy.
Underlying Causes
The passage of stack of ordinances is justified mostly on grounds that a shouting minority creating ruckus should not ‘gag’ a tolerant majority. Even those who made ordinance a new normal-way of making legislation are seen uproaring against ruling government for issuing ordinance. The fault here lies on both-ends. While opposition creates logjam, nuances and ruckus in parliament, ruling-party often attains hasty post-facto approval of ordinances by resorting to undemocratic parliamentary procedure. Parliamentary efficiency in India is usually judged by quick passage of legislation. It is highly misconstrued, as it should be based on count of original-laws and amendments bifurcated, time spent on discussion, number of private member bills, quality of law in terms of validity and stability, quality of debate, works of standing and ad-hoc committees etc. Ordinances converted into act in a rush bypass the process of pre-legislative consultation and scrutiny by parliamentary committee. Cancelling question-hour and slashing Zero-hour time by half deprives the opposition to raise important issues. The quality of legislations is highly compromised without adequate debate, discussions and deliberations. Just a couple of years ago, 83% of the budget and 100% of the demands were passed through Guillotine-System without discussion in Union Budget, 2018-19. Upper-house is not just the house of representative of the states; it also ensures executive accountability by thorough check on rushed, ill-conceived and ill-advised decisions. Practice of passing major bills as money-bill and through voice-votes is emerging way to undermine the significance of Rajya-sabha.
Custodians’ Comment
Supreme Court has time and again reiterated that ordinance can be challenged on ground that no immediate action was required on the subject and was issued just to avoid parliamentary debates and discussions, thereby opening scope for judicial review of ordinances. In the DC Wadhwa vs. the state of Bihar case, SC ruled that legislative power of executives is for exceptional circumstances and not to be exercised as a substitute of legislature. Re-promulgation of ordinance was termed as “Fraud on the Constitution and a subversion and perversion of legislative democratic process” in 2017 ruling of SC.
In 2016, government drew flak from the then president Pranab Mukherjee and was reprimanded over the issue to get ordinance on enemy properties issued without even cabinet clearance. The government was also rebuked for re-promulgating the same ordinance for 5 times straight-away and not getting converted it into act through parliament. For sake of democratic values, he warned the executives to not set wrong precedents through bypass of cabinet and legislature while making laws.
Provision of legislation through ordinance in countries following parliamentary form of democracy is restricted only to India, Pakistan and Bangladesh. Parliament-session is convened before making any law in all other countries. Debates, discussions and dissents are lodestar of parliamentary functioning and disruptions always end up harming oppositions the most. Thus, it necessitates both ruling party and opposition to allow smooth functioning of parliament with constructive criticisms in coherent manner to ensure congenial working environment in order to avoid Ordinance Raj.