Frequent Promulgation of Ordinances is a Threat to Parliamentary Democracy
This Blog is written by Kashish Batta from University of Petroleum and Energy Studies, Dehradun. Edited by Karan Dutt.
Indian democracy is framed around the ideal of representation, even when circumstances are difficult. We are aware of the many issues that have arisen in an attempt to satisfy an adequate representation of the different Indian peoples. Following the ideals of democracy, India has two houses; the Lok Sabha is the home of the people and the Rajya Sabha is the council of states. These two houses are in session for most of the year divided into three segments, except for about four months at different intervals. Article 123 of the Indian Constitution gives the President the power to issue ordinances on the recommendation of the Union Cabinet, when Parliament is not in session, to ensure action when it is urgently needed to enable the welfare of the people. The way this power has been used in Indian history made many people question whether it was not a threat to parliamentary democracy. Article 123 was adopted by sections 42 and 43 of the Government of India Act, 1935. These sections spoke of the legislative power of the governor general and allowed for the enactment of ordinances “if circumstances exist that make it necessary for him to take immediate action” . In the same spirit, Article 213 was adopted, which gives state governments the power to issue such ordinances. The key feature of both of these articles is that parliament should not be in session, there should be a need and immediate action should be needed. In addition, this ordinance should be ratified by both houses within six weeks of the reassembly.
CONSTITUENT ASSEMBLY ROLE
After the British government averted the work of the Constituent Assembly, it was entrusted with the task of framing the Constitution of the propelled country. The work of the constituent assembly was fully democratic as different opinions on different provisions were accepted and then deliberated through discussions and reasoned debates. The assembly began around May 1947 and since then points related to the ordinance such as its duration, procedure and also the possibilities of abuse and rescheduling at different times. There were rumors both in the assembly and in favor of the provision. The voices in favor of the view that this provision would help the nation to drive away from unprecedented situations of emergency and need for immediate action and the voices against the provision have stated that this provision as for the British is a tool in the hands of the executive to enact unnecessary legislation that could sometimes be repressive for individuals or citizens. It was only after a long debate and discussion that this provision was incorporated into the constitution and after taking all possible precautions to ensure that the provision is not used as a secret tool and facilitator to government. help to skip the legislative mandate to implement a provision to aid its functioning. This could transform the legislative order into a monarchical or dictatorial one.
There was no voice in the constitutional referring to the president’s power to enact an ordinance and this provision also met with much opposition in the assembly. Therefore it was only after a long debate and reasoned discussion that the power of promulgation of the Presidential Ordinance was adopted by the drafters of the Constitution of India under article 123 which explains the rules, requirements and conditions under to which an ordinance is drawn up. The first thing in the provision is that the President can issue an order when both or one of the Houses are not meeting and he is convinced and thinks that there is an issue or matter for which immediate action is needed. This normally happens in the duration between parliamentary sessions and also when one of the chambers is unable to conduct proceedings due to disruptions such as strikes and demonstrations against a bill inside or outside the house by the opposition party. According to Pandit H.N. Kunzru, who was part of the Constituent Assembly, the purpose of an ordinance is to deal with emergency situations in the country that require immediate action. This is one of the most important legislative powers conferred on the President. An ordinance is promulgated by the President after having listened to the help and advice of the Council of Ministers and sometimes also of the Judiciary regarding the legal implications of the provisions contained. The ordinance thus promulgated by the President has the same effects as a law approved by the legislator in the ordinary way. There are two important conditions in this regard:
• The matter on which the ordinance was issued is that in which the trade union legislator is competent or has the power to legislate.
• The matter in question must have the same limitation on the trade union legislator with reference to the federal division of the subjects in the different lists. In other words, the matter on which the president is making the legislation must be within the Union or Concurrent list.
The promulgation of an order by the President must be communicated to the public by notification invoked in the name of the President as soon as possible after his assent to the order. This ordinance promulgated by the President and thus notified to the public is valid and will have effect for six months which is the longest period in which the Houses of Parliament cannot be gathered. As soon as Parliament meets in session, the houses are given a period of an additional six weeks or 42 days to make a decision on the ordinance thus promulgated. After this deadline, the ordinance will cease to have effect. The ordinance can be declared void even before the expiry of the 6-week term if the Houses vote against the assembly in session. If the Houses are in favor of the ordinance, it can be converted into a bill which can be discussed for conversion into law within six weeks. The power to issue ordinances in the states is given to the Governor with related provisions such as immediate action and a 6-week time to enactment. All provisions relating to the functions of the Chambers are followed by the Legislature of the State
MISUSE OR ABUSE OF POWER
The current central government has enacted nine ordinances within the first eight months of its rule. In 2019, they also passed as many as five ordinances right before election season, and the model code of conduct became applicable. Many of these, such as the 2019 Jammu and Kashmir Reservation (Amendment) Ordinance, were clearly more politically motivated than legislative. During its long tenure, the BJP government passed several ordinances to actually aid legal processes such as the Indian Medical Council Ordinance (Amendment), 2016, however, it has issued many to meet political needs. An inherent error was found when the Government of India issued the Ordinance on the Termination of Liabilities of Specified Banknotes, 2016, for a future date. The purpose of empowering the government is to take immediate action, which puts a postdated ordinance fully within the scope. The misuse of the ordinance has become so popular that the term “Raj Ordinance” has become in common use as a signifier of this abuse by the current government. In February 2019, the BJP government enacted the New Delhi International Arbitration Center Ordinance, which would take over the existing autonomous organization, the International Center for Alternative Dispute Resolution. This was led by the Chief Justice of India, but the NDIAC would be led by judges chosen by the governments. Furthermore, all proceeds from it would go to the government. This was done immediately after the 248th session of parliament as the bill on this was still pending when the session ended, which would cause it to lapse. The reason for the immediacy provided by the government claimed that it would promote “ease of doing business”. Such reasoning seems insufficient to issue an ordinance strictly to be used in emergency situations.
Recently, in June 2020, the BJP government issued three ordinances as part of the COVID-19 aid package to allegedly help farmers. Many experts have argued that such ordinances in the first place do not help farmers but only large farms and, secondly, they have no relation to the pandemic and therefore are not urgent. There was no urgency in passing the Trade Ordinance (Promotion and Facilitation) of the Farmers’ Product Market, 2020, the Farmers Agreement (Empowerment and Protection) on Price Insurance and the Agricultural Services Ordinance, 2020 or in the amendment of the Essential Products Act. Not only do they not help destitute farmers, but they also do not address the problems faced by farmers as a result of the pandemic, which makes us question the validity of bypassing Parliament.
Another case of abuse by the Congressional government was when they tried to issue an ordinance to protect convicted lawmakers from immediate ban, even though there was a pending bill on the same matter in Parliament; the Representation of the People (Second Amendment and Validation) Bill, 2013. The ordinance was revoked only after a huge public outcry against it, after which Congress simply withdrew from its position claiming it had changed its mind. This was clearly contrary to the discipline dictated by article 123 which specifically mention the need for urgent action. Furthermore, he attempted to overcome the legislative power of parliament despite there being no need, especially since a bill related to the same controversy was pending. Between 1952 and 2014 there were 637 ordinances and in 2020 alone there were twelve. The highest number of ordinances (99) was recorded during the controversial reign of Indira Gandhi between the years 1971-77. Although both articles 123 and 213 mention the prerequisites to be met when issuing ordinances, they are rarely met. The use of tactics such as re-promulgation only further questions the fundamental legislative supremacy of parliament. There have been judicial decisions that openly tell the government to use the powers under Articles 123 and 213 carefully and little, but the same haphazard way is evident in the government. This abuse of power goes against what our democracy stands for and violates the principles of the separation of powers. It is turning into a means of parallel immoral legislator by a body that is not competent to do so. If this continues to be the case, the democratic structures that we have spent years perfecting and enriching will easily be put under scrutiny.
The only solution to the above problems is the doctrine of checks and balances. All branches are equal in the eye of the constitution. That is, no branch is higher or lower than the other. Hence the actions of the Gov. in this regard it could be tested through a three-way control facility.
• Judicial committees of the Parliament
• Legislative mandate
• The judiciary
This article had the purpose of getting to know in depth and enrich my knowledge on the current scenario of the ordinance provision in our country. There are long speculations that the government. both in the center and in the states have deepened the practice of re-promulgating the ordinance after the expiration of the 6-month period without submitting it to the Houses of Parliament for their consent to the ordinance so that it has become an instrument in the hands of the Gov. skip the legislative mandate which was clearly not the intentions of the authors of the Constitution in adopting this provision. It was clearly intended to address emergency situations and the immediate actions needed as clarified by the Honorable S.C. in several cases that it is an emergency provision erroneously used by the Government. It is certainly an important provision and also has the necessary measures to ensure that the provision is not misused such as judicial review, review by parliamentary committees and the discretion of the President, etc. Another thing is that the use of the ordinance is rampant due to the prolonged period of suspension of the chambers and also the frequent interruptions of the work of the chambers of Parliament. The pause period can be shortened and interruptions controlled to control the use and abuse of ordinances at both central and state levels. Therefore, it is not the provision actually that needs to be verified, but the procedures involved in its use to ensure that it is not used for the wrong and covert intentions of governments. This can be done through the prudence of the President and the vigilance of the Judiciary and also the will of the public.
(1) http://statescape.com/resources/local/ordinance-process.aspx accessed 15 October
(7) Anita Joushua, Repromulgation of Ordinance A Tool for Weaker Coalitions (2016) the hindu https://www.thehindu.com/news/national/repromulgation-of-ordinances-a-tool-for-weaker-coalitions/article7287549.ece accessed on 26 October 2018
(8) Amartya Bag, Ordinance making power of the President of India: A critical outlook (2015) https://blog.ipleaders.in/ordinance-making-power-critical-outlook/ accessed 16 October 2018.