Events & Issues
New Delhi, 8 July 2013
Food Security
Ordinance
EXECUTIVE TAKES
OVER LAW MAKING!
By Dr S Saraswathi
(Former Director, ICSSR, New Delhi)
To President has expectedly given his assent to the Food
Security Ordinance. Presented as a “game changer” and “life saver for many
people” by the ruling UPA-II, the Ordinance route is sought to be justified as
an urgent move to feed the hungry on the verge of death. The nation may rejoice
in the illusion that hunger will be eradicated from this country well before
2014 elections and long before the stipulated date of 2015 under the Millennium
Development Goals.
However, this Ordinance has raised more questions on the use
of Ordinance-making power by the Government than the merits of its provisions. One
may recall that the UPA led Congress Government was once nicknamed as
“Ordinance Raj” by the rightist Opposition.
Many leaders of the ruling parties put the blame on the Opposition
for stalling Parliament for entire sessions and compelling the Government to
resort to the Ordinance route. Neither the cause for disruption of Parliament
nor the sudden emergency for food security law is touched pointedly.
The National Food Security Bill was introduced in Parliament
in December 2011. The Standing Committee examined the Bill and gave its
recommendations. Thereafter, an amended Bill was introduced in Parliament and kicking
off a debate.
From the public statements made by various political
parties, it is clear that there is no consensus among them on the Bill as it is
drafted. Even allies and reliable “outside” supporters of the ruling UPA have
some strong reservations which can be resolved only through a thorough debate in and
outside Parliament The matter is vitally important for everybody
and also involves tremendous public expenditure,
roughly estimated at a whopping Rs 125,000 crore annually.
It, therefore, deserves and indeed needs national consensus for the sake
of proper implementation.
Importantly, the cooperation of State governments is a
prerequisite to enforce the Ordinance as food is in the Concurrent list and States
rightly have to share the responsibility. They have vital interests in
production and distribution of food stuff and are operating the Public
Distribution System. Some States such
as Tamil Nadu, Andhra Pradesh, and Chhattisgarh are running an effective PDS
going beyond what is offered under the Ordinance. Hence, the ordinance raises diverse
questions on propriety, utility, and practicability of exercising executive
law-making power on this issue.
The term “Ordinance” meaning “that which is ordained by
authority, fate, etc.,” and commonly used for religious decrees, means in its
verb form “to ordain: to coordinate, order”. Ordinance-making power is granted
to the Executive at the Centre and States under Articles 123 and 213 in the
Indian Constitution.
Under Article 123, the President has the power to promulgate
Ordinances during recess of Parliament on any subject on which it can enact laws
if he/she is satisfied that circumstances exist which render it necessary for
him/her to take immediate action. Such Ordinances have the same force and
effect as an Act of Parliament. A similar power is granted to the Governors of States
to promulgate Ordinances during recess of State legislatures on any state
subject.
This power of the Executive to enter into the domain of the Legislature
with authority can be traced to the British rule in India. The Governor-General was
vested with such power to meet threats to safety and security of the empire and
protect British interests in India.
The Government of India Act 1935 empowered the Governor-General to “act in his
discretion” or in “his own judgement” while exercising powers in specific
matters under his governance and administration. They could issue Ordinances
even when the legislatures were in session.
This provision in the1935 Act is retained in the Indian
Constitution with the difference that the President has to act on the advice of
the Government and has no discretion in the matter. The Ordinance-making power
is a legislative function and presently, it can be used only when Parliament is
not in session.
Ordinances are allowed on fiscal matters also. However, all Ordinances
are subject to review and can be challenged in court.
Every ordinance promulgated under Articles 123 and 213
should be laid before both Houses of Parliament and State legislatures
respectively, and unless passed by these within six weeks from the date of their
reassembly will lapse automatically.
Over 200 ordinances have been promulgated by the Union
government so far. A maximum number of
34 ordinances were issued in 1992. In
1974, 29 were issued. Among the States, Bihar
has an unsurpassed record of Ordinance rule and the practice of re-promulgating
these also.
In 1970, the Supreme Court in the judgement in Cooper vs The Union of India has stated that the exercise of the power to
promulgate an Ordinance is “strictly conditioned”. It said: “the satisfaction
relates to the existence of circumstances as well as to the necessity to take
immediate action on which the satisfaction depends, is not declared final”.
The satisfaction of the President is subjective and could be
challenged on the ground of ‘malafides”. Obviously, there could be and there
have been something more than exigencies of a situation in resorting to the Ordinance
route.
The Ordinance on food security also faces legal challenge in
the Supreme Court. A Public Interest Litigation has raised constitutional
questions regarding emergent situations necessitating it, and its use for political
propaganda for electoral purposes by the ruling alliance.
The Constituent Assembly was aware of the potentials of the Ordinance-making
power of the Executive and discussed this matter at some length as there was no
unanimity among the members. In fact, during the Freedom Movement, the Congress
had been vehemently opposing the Ordinance-making power of the
Governor-General.
The Constituent Assembly has accorded law-making power to
the Executive to be used in extraordinary circumstances and to take immediate
action if necessary. In the opinion of Mavlankar, the outstanding Speaker of
the Lok Sabha, conveyed in his discussions with Jawaharlal Nehru that “the
procedure for promulgation of Ordinances is inherently undemocratic”. Whether the issue is justifiable or not,
promulgating an Ordinance was said to have a psychologically bad effect.
Pandit Hridayanath Kunzru
even questioned the argument of emergent situation demanding urgent law.
He stated that if there was such an emergency, Parliament should be summoned as
early as possible. He was in favour of vesting the Executive with adequate
power to maintain peace and order without the need to assume law-making power.
Evidently, parliamentarians at that time were only thinking of disturbances to
law and order and warlike situations and did not anticipate exercise of this
power to such a peaceful task as providing food security.
This is not the first time that controversies erupt over an Ordinance.
Bank nationalization, for instance, was done in 1969 by one such Ordinance. So
also, MISA was amended.
One regrets to recall bad old days. It is unfortunate that
the Ordinance path is challenged today more than its substance. But, methods
are as important as the ends in a democracy. Will are ruling elite take a leaf
out of the debates of the Constituent Assembly and save themselves
embarrassment and guard against making a mockery of well-established practices?
--- INFA
(Copyright,
India News and Feature Alliance)
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