An ordinance is a temporary law made by the President of
India on the advice of the Central Government when Parliament is not in
session. An ordinance becomes a permanent Act on being approved by Parliament
within six weeks of reassembly. As Parliament convenes for the monsoon session
in September, it will need to consider and approve ordinances promulgated over
the past six months. Since March 24, when the lockdown was imposed, 11
ordinances have been signed by the President. With every session, the BJP
Government is brazenly rewriting the rules of Parliament. In the forthcoming
monsoon session, it has cancelled Question Hour, so the Opposition is not given
a chance to hold the Government accountable. It has slashed Zero120 Hour time from 60 minutes to 30 minutes, to deprive the
Opposition of raising issues of importance. It has misused140 a constitutional tool such as an ordinance, to mock
Parliament in a way it has not been done in 70 years. 160 Five of the 11 ordinances are broadly related to the
outcome of COVID-19, coupled with two in the health sector. All the other
ordinances are unrelated to the pandemic, including the Banking Regulation
(Amendment) Ordinance, and the three ordinances related to agriculture. These
are the 11 ordinances that Parliament will be required to approve in the coming
fortnight. Many previous Presidents have raised questions about individual
ordinances. The current President, in his wisdom, prefers to go ahead
without asking240 questions.
Some statistics are revealing. In the first 30 years of our parliamentary
democracy, there was one ordinance promulgated for every 10 Bills introduced in
Parliament. In the following 30 years, the ratio was two ordinances for every
10 Bills. 280 In the 16th
Lok Sabha, the number jumped to 3.5 ordinances for every 10 Bills. In the
current Lok Sabha, it is so far 3.3 ordinances to every 10 Bills. In the first
term of the Narendra Modi Government,320 the number shot up to 10 ordinances a year. About 10
ordinances were issued on the eve of the 2019 general election. Clearly, the
BJP has a preference for short-circuiting democracy. Ordinances have to
be approved by Parliament within six weeks360 of reassembly. In fact, there are two problems. The first
one is that the BJP Government thinks nothing of re-promulgating ordinances
that have lapsed. This is a breach of convention and extremely undemocratic.
But the Modi Government has done it more than once. The second problem is that
a Bill that seeks post-facto approval
for an ordinance is often rushed420 through the
House. The deliberation and fine-tuning, the pre-legislative stakeholder
consultations and the committee scrutiny are important stages in the passage of
a law. Ordinances that hurriedly become Bills and then Acts bypass this
process. Is the BJP Government guilty of pushing laws that it wants in place
without adequate parliamentary discussion or scrutiny by Parliament committees,
especially when the480 country is
distracted by a pandemic? The Banking Regulation (Amendment) Ordinance is a
response to the Punjab and Maharashtra Cooperative Bank scandal. There have
been two parliamentary sessions since the scandal became public knowledge, and
no draft Bill was introduced. Similarly, permitting corporate farming, and liberalizing
agricultural trade regimes as well as produce movement to benefit big
retailers, should have been preceded by adequate parliamentary debate. These
are significant and controversial decisions. Has care been taken to address the
information560 asymmetry
between farmers who sell and big traders and corporations that buy? This
could have been scrutinized by a parliamentary committee. The ordinance
glosses over it and passes itself off as either pandemic relief to farmers or
an economic reform. 600 The fact is that
it is neither of them. The timing of such ordinances is very odd and no
coronavirus-related gap is being filled. This problematic ordinance culture has
extended to BJP-run States as well. During the lockdown, BJP640 Governments in Uttar Pradesh, Madhya Pradesh and Gujarat
issued ordinances diluting labour laws, without consulting worker unions and
civil rights groups. Even the International Labour Organization advised
caution. On March 15, just before the lockdown, the Uttar Pradesh Recovery of
Damages to Public and Private Property Ordinance was promulgated. It sought to
impose punitive fines on those who damaged public700 and private properties during protests. This is a law
reminiscent of the colonial era. To support and enable the implementation of720 the Farmers’ Produce Trade and Commerce (Promotion and
Facilitation) Ordinance, the Central Government is pushing States to amend
their Agriculture Produce Marketing Committee Acts. This will minimize the role
of State market committees and risk creating agricultural cartels of big food
businesses and retailers. Uttar Pradesh, Madhya Pradesh, Gujarat, and Karnataka
have acted as per command and promptly promulgated ordinances. It is important
to mention here that there are only three parliamentary democracies in
the world that permit the800 ordinance
route — India, Pakistan and Bangladesh. The practice in India was
adopted from the Government of India Act, 1935, where the Viceroy could
do as he pleased. In every other country, Parliament has to be convened
in order to get a840 law passed.
In recent days, the Central Government has
introduced a slew of
ordinances related to land acquisition, raising cap on foreign investment
in the insurance sector, coal mining license allocation, changes to the
TRAI Act and so on. Several Governments in the past, including the
earlier UPA regime, have used the ordinance route to push through legislations
which they have found difficult to get passed in the legislature. What is the
ordinance route and does it benefit the people? Article 123 of the Indian Constitution gives the
right to the President of India to promulgate an ordinance if neither House
of Parliament is in session and circumstances exist, which render it
necessary for him to take immediate action. Every960 ordinance has to be presented to Parliament,
and ceases to exist six weeks from the end of the next sitting980 of Parliament. Since the Constitution requires that
Parliament be convened at least once every six months, ordinances have
a de facto expiration period of approximately seven and a half
months. Article 213 gives the same power to the Governor of a State. Ordinance-making
power is not a new feature added by the Constituent Assembly to the
Indian Constitution. Articles 42 and 43 of the colonial Government of India
Act, 1935, gave the same power to the Governor General. So, the power to
promulgate ordinances in the hands of the Executive is a definite provision
that our colonial rulers made so1080 as to ensure that sovereignty lies in the hands of the Executive and
not the people. The new Indian rulers realized that it is to their benefit that
this Article is retained in the new Constitution. Some of the Constituent1120 Assembly members argued that the Executive’s
power to promulgate ordinances should be through greater oversight by
legislatures. They were overruled by Dr. Ambedkar, who stated that
ordinance-making powers were necessary since existing law might be deficient to
deal with a situation which may suddenly and immediately arise. Later, in
many instances, the particular situation that Dr. Ambedkar mentioned turned
out to be situations concerning economic and political reforms in favour
of monopoly houses. The ordinance route proved very useful for1200 Central Governments after 1947 to push through
legislation in the interests of their constituencies, which essentially
comprised the wealthy and powerful. More than 41 ordinances were promulgated
during the term of the first Lok Sabha itself. Before 1966, more than 75
ordinances were passed by the Central Government. Most of these ordinances
benefited the large monopoly houses. For example, the1260 Telecom Regulatory Authority of India was
created in 1997 first by an ordinance and then by an Act of Parliament.1280 The Minister in charge stated that the
ordinance route was taken since the Government was facing difficulties in
attracting private investment without an authority like the TRAI. Private
investors were not convinced about Government’s ongoing processes of privatization
and liberalization. What this meant was that Telecom monopolies put
pressure on the Government to bring in a new liberalized regime through an
ordinance. Similarly, the Electricity Regulatory Commissions Ordinance
was promulgated in 1998, for rationalizing electricity tariffs when the Government
found it difficult to pass the concerned Bill in the Legislature. Many
well-meaning critiques of the ordinance route have been demanding that the Legislature
and the Judiciary should devise some measures to check this high-handedness
of the Executive. The Supreme Court1400 has tried to interpret that the ordinance-making power of the President
is actually a legislative power given to the President, in times of
emergencies, and as such it is different from his executive powers. But
such efforts to do a1440 judicial review of central ordinances has not met with much
success. This is to be expected since the power given to the Executive
by the Constitution is to ensure that the will of powerful forces who decide
the economic and political policies of the country prevails and
not that of people. If their preferred political party is discredited
and not able to garner a majority in Parliament, those in power compel the
party in power to use the ordinance route to push through legislation for
going ahead with their loot and plunder. The existing Constitution gives vast
powers to the Executive to act independently of the elected representatives
of the people. The Executive has powers to declare a state of emergency, pull
down State Governments, and establish administrative bodies without the
consent of Parliament. What this points out is that real powers lie in
the hands of the Executive, not in the hands of the Legislature or the Judiciary,
leave1600 alone the
people.
