Open Forum

New Delhi, 6 January 2015

Executive Ordinance

DECLINE OF PARLIAMENT?

By Dr S Saraswathi

(Former Director, ICSSR, New Delhi)

The ordinance route laid by the UPA governments is being followed by the NDA now, but not without criticism. Whether the matter is big or small, or it has political implications or not, the spirit of democracy requires that extraordinary powers are to be exercised in extraordinary situations only and not for political convenience of the powers that be.

Since the winter session of Parliament that ended on 23 December 2014, the NDA Government has issued three ordinances to push through vital economic reforms. These relate to enhancing FDI in insurance sector, auction of coal mines, and amendment to land acquisition law. The last, which has raised protests, is intended to ease procedure so as to help augment infrastructure building and housing projects. One more is in the pipeline for auction of iron ore and other minerals.

Coming immediately after the end of Parliament’s sitting, the ordinance route raises questions over the urgency for the legislations and the Government’s confidence on the support of Parliament to regularize these. It also exposes the inability of the Government to conduct Parliament to take up legislative business and prevent wastage of working time by Opposition parties blocking proceedings.

The controversy today is a political one about the use of ordinance-making power and not so much about the contents of the ordinances! Strange indeed. Any ordinance will remain in force only for six months and has to undergo the prescribed procedure for legislation in Parliament within six weeks after convening of the session to become regular law.  Otherwise, it will automatically lapse.

The Government justified the ordinance route on the plea that it was left with no other option owing to the “obstructionist attitude” of the Opposition defended its stand on grounds of economic urgency.    

While promulgating an ordinance, the government must be convinced of two primary factors.  One, the urgency of the situation; two, is its confidence to push the legislation in Parliament within the stipulated time. We can endlessly debate over these two considerations. Since the three ordinances have come in the early stage of the new government and not at the fag end, there is reason to believe that it is convinced of their importance and urgency and sure of its ability to muster support to pass the laws.

But, the political controversy over ordinance-making power, which strikes at the doctrine of “separation of powers” – a basic principle of modern democracies – has to be separately addressed. This power is not found in established democracies – parliamentary or presidential.  Our companions in this are only Bangladesh and Pakistan -- countries which by no stretch of imagination can be held as model democracies for emulation.

Since the constitution of the first Lok Sabha in 1952, a total of 637 ordinances have been issued by the Union Government. Analysts are almost unanimous that except in the ordinance on de-monetization of rupee notes in 1,000, 5,000, and 10,000 denominations by the Congress government headed by Narasimha Rao in the first half of 1990s, the question of urgency could not be sustained. 

At the State level, Bihar has set a record of 256 ordinances passed in 14-15 years between 1967 and 1981 of which many were re-promulgation cases. In one instance, 50 ordinances were issued in a single day! Of the total of 256, only 189 were passed by the legislature to become law thus nullifying the validity of the other ordinances and exposing the undemocratic nature and use of ordinance-making power.

This power was all along used as a tool of convenience to bypass parliamentary opposition.  It started with the ordinance on nationalization of life insurance business in 1956 by the Congress government then headed by Jawaharlal Nehru. The then Speaker GV Mavalankar bitterly opposed it as “inherently undemocratic”. He was also keen that the young republic should set sound standards and traditions and not belittle the legislative role of Parliament.

Another controversial use of ordinance-making power was made in the nationalization of banks in 1969 by the Congress government headed by Indira Gandhi just two days before convening Parliament. Its constitutionality was challenged in RC Cooper versus Union of India in 1970. The Supreme Court held that the need for immediate action to bypass Parliamentary debate could be challenged in a court of law. In the case of bank nationalization, it was held that no “immediate action” was required.

Ordinance-making power in the Constitution is a copy of Section 72 of Government of India Act, 1935 and thus a relic of the British Raj. Considerable protests surfaced in the Constituent Assembly in retaining this power of the Executive in a parliamentary democracy. It was recalled that this power was bitterly opposed by the Congress during the freedom struggle and in discussions on constitutional reforms. 

H V Kamath opposed this legislative power of the Executive in the Constituent Assembly equating it to the ordinance-making power of the Governor-General in the British rule. There are two differences between the two. While the Governor-General then could issue ordinances even when the legislature was in session, the President today cannot when Parliament is in session. He/she cannot also act independently but is bound to act on the advice of the Council of Ministers formed by the party or alliance enjoying majority in Lok Sabha. This situation provides certain legitimacy to ordinances issued to meet emergencies.

A coalition government depending on the concurrence of all allies and a minority government carried on with issue-based support cannot venture on ordinance route as a government of a party with majority members in the lower House. Such a government lacking majority in the Rajya Sabha can call a joint session of Parliament to regularize the ordinance if it commands a majority of total members. The Modi government has this numerical strength.

In any case, under Article 123 of the Constitution, ordinances can be issued only during Parliament recess and only if the President is satisfied that circumstances exist which render it necessary for him to take immediate action. Similar is the condition for promulgating an ordinance by States’ Governors.

However, this provision made for meeting urgency is being used to overcome the failure to conduct Parliament proceedings. Ordinances are being issued just before or immediately after a session making mockery of the condition in the term “during recess”. The UPA II government (2009-14) set a record by promulgating 25 ordinances.

The ordinance amending land acquisition law, which had the President questioning its urgency, is intended to balance the interests of farmers and industrial growth and has enormous social-political implications. But, most of the Opposition parties consider the ordinance as “anti-farmer” and are organizing protests on roads and planning to continue agitation within Parliament during Budget session.  The deletion of the clause prescribing consent of predominant proportion of land holders before acquisition of agricultural land is challenged as detrimental to farmers’ interests.

Ordinance route is rather dangerous when Opposition presents views that deserve a debate.   Parliament couldn’t be conducted peacefully is no excuse. The nation cannot watch the decline of Parliament. The Party that has won huge majority by sheer hard work can and must find ways to befriend Opposition parties to promote national interests and establish a strong culture of running a government with the consent and support of the Opposition. ---INFA

(Copyright, India News & Feature Alliance)

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