The Curious Case of the Ordinance Wave

An ordinance is a temporary law made by the President of India (on the advice of the cabinet of ministers) when Parliament is in recess. An ordinance becomes a permanent Act on being approved by Parliament within six weeks of commencement of the parliament.

Article 123 of the Indian constitution was adopted from Sections 42 and 43 of the Government of India Act, 1935. These Sections laid down the legislative power of the governor general, one part of which allowed promulgation of ordinances “if circumstances exist which render it necessary for him to take immediate action”.

Article 213 grants an identical power to the Governor of states when the legislative assembly is not in session. These articles are part of flexible nature of our constitution and help in timely disposal of problems whose solutions need a legislative backing.

Taking our country’s huge and diverse population and needs into account, there is a need for discussion, deliberation and debate on every issue of mass concern. Codified in the constitution is an extensive way to make a law and bypassing this process should be an anomaly than a norm.

However, the past few years have totally gone against this assertion. Some statistics are revealing. During the first thirty years of our parliamentarian democracy, there was one ordinance promulgated for every ten bills introduced in Parliament.

In the 30 years that followed, the ratio was two ordinances for every 10 Bills. In the sixteenth Lok Sabha (2014-19), it jumped to 3.5 ordinances for every ten bills. In the current Lok Sabha session it is, so far, 3.3 ordinances to every 10 Bills.

Look at it another way. During the period between1998 and 2004, when the National Democratic Alliance was in office, the government promulgated 9.6 ordinances a year.

Between 2004-09 (United Progressive Alliance-I), 7.2 ordinances were issued a year and for UPA-II, it was right down to five a year.

Between 2014 and 2019, the first term of the Narendra Modi government, the number shot up to 10 ordinances a year. About 10 ordinances were promulgated on the eve of the 2019 general election.

Such statistics raise pertinent questions when seen in the light of 1986 Supreme Court judgment of D.C. Wadhwa vs. State of Bihar where Chief Justice P.N. Bhagwati observed:

“The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be "perverted to serve political ends".

It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time.”

Time and again various eminent personalities have questioned the authority of ordinance such as Justice Gupta in A. K. Roy, Etc vs Union Of India And Anr on 28 December, 1981 as he remarked:

“On the other point, I find it difficult to agree that an ordinance is 'law' within the meaning of article 21of the Constitution. Article 21 reads:

‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’

According to him, an ordinance has to be laid down before both the houses of parliament and cease to operate at the expiration of that period. Such resolutions can hardly be said to have that firmness and permanence that article 21 of the Indian constitution requires.

There have also been instances when the government re-promulgates an Ordinance with the purpose of prolonging the applicability. Like in the case of Securities Laws (Amendment) Ordinance, 2014 which was extended twice begs the questions of the extent of sovereignty as to law making of the parliament. Likewise, the Indian Medical Council (Amendment) Ordinance, 2010 was re-promulgated four times.

In a Supreme Court case Krishna Kumar Singh v. State of Bihar (2017),it was held that re-promulgation was a fraud on the Constitution and sub-version of democratic legislative processes.

Though the validity of ordinance and its per se authority can’t be denied, its role and the circumstances in which it has been passed can certainly be questioned.

This brings us to the current scenario where not only the central government but also the state governments has been passing ordinances regularly, some of which have created a lot of heat in the society.

The coronavirus pandemic has added fuel to fire and has maybe become a cover for circumventing the law partially.

Some examples point out the graveness of the situation and the need for looking into the matter at the earliest.

1) Was another route possible?

· The Banking Regulation (Amendment) Ordinance was a response to the Punjab and Maharashtra Cooperative Bank scandal and was promulgated on June 26, 2020. There had been two parliamentary sessions since the scandal became public knowledge in September 2019, and no draft bill was introduced.

· One paradox was seen when the GoI issued the Specified Bank Notes Cessation of Liabilities Ordinance, 2016, for a future date. The purpose of giving the government such power is to take immediate action, which makes a post-dated ordinance fall solidly outside the motive of such a provision.

· In February 2019, the NDA government promulgated the New Delhi International Arbitration Centre Ordinance, which would take over the existing autonomous organization, International Centre for Alternative Dispute Resolution. This was headed by the Chief Justice of India but the NDIAC would be headed by judges which the government would choose. Further, proceeds from the same were to go to the government.

This was done right after the 248^th parliament session as the bill regarding this was still pending when the session concluded, which would make it lapse. The reason for taking an immediate action given by the government said that it would promote ‘ease of doing business’. Such a vague reasoning doesn’t seem sufficient to issue an ordinance which is strictly to be used during emergency situations.

2) Bypassing Scrutiny

Bills on important matters such as the Farmers Bill which could have been delayed to subject the bill to discussion and deliberation and general public’s comment was promulgated as an ordinance, thus ensuring that it lacked any legislative scrutiny and furthermore could not have been referred to any parliamentary committee.

3) Pandemic as a Cover

· Since March 24, 2020, eleven ordinances have been passed by the government out of which only five are remotely related to coronavirus and its impact plus two are related to the healthcare sector.

· This raises important questions as to why ordinances such as Indian Medicine Central Council (Amendment) Ordinance, 2020, promulgated on April 24., The Homeopathy Central Council (Amendment) Ordinance, 2020, promulgated on April 24, and all the three farmers bill could not have waited.

· The government released three ordinances as part of the COVID-19 relief package to supposedly help farmers. Many experts have opined that such mandates firstly, do not help the farmers but only the big Agri-corporations and secondly, that they have no connection to the pandemic and are thus not urgent.

No urgent need could be seen which could lead to the promulgation of The Farmers’ Produce Market Commerce (Promotion and Facilitation) Ordinance, 2020, The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020 or in amending the Essential Commodities Act.

Not only do they not help the destitute farmers, they do not tackle the issues faced by farmers either, which makes us question whether it was valid to bypass the Parliament.

The issue that confronts us today revolves around some very pertinent questions. Has the route of promulgating ordinance become a way of bypassing scrutiny? Can the ordinance be promulgated at the whims and fancies of the executive or does it have some pre- requisites? Are these ordinances infringing the principle of federalism? Are ordinances being misused? Are they providing the legislative push to breakdown of social order?

Disturbing questions, that demand awareness and answers.

(The author is a first-year law student at the National Law University, Delhi)

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