The Author, Anushka Khaitan, is a 3rd-year, BBA.LLB student at Jindal Global Law School. She is currently interning with LatestLaws.com.
Indian democracy is framed around the ideal of representation, even when the circumstances are difficult. We are privy to the multi-fold issues that have arisen while attempting to fulfill adequate representation of the diverse Indian peoples. Following the ideals of democracy India has two houses; the Lok Sabha is the house of the people and the Rajya Sabha is the council of states. These two houses are in session for most of the year divided up into three segments, except for roughly four months at different intervals.
Article 123 of the Constitution of India grants the President the power to promulgate ordinances on the recommendation of the Union Cabinet, when the Parliament is not in session, to ensure action when it is urgently required to enable welfare of the people. The way that this power has been used in Indian history has made many people question whether it is a threat to parliamentary democracy. Article 123 was adopted from Sections 42 and 43 of the Government of India Act, 1935. These Sections talked about the legislative power of the governor general and allowed promulgation of ordinances “if circumstances exist which render it necessary for him to take immediate action”. Article 213 was adopted in the same spirit, which gives state governments the power to issue such ordinances. They key features of both these Articles is that parliament should not be in session, there should be a necessity, and there should be need for immediate action. Further, such ordinance should be ratified by both houses within six weeks of reassembling.
During the constituent assembly debate, those in favour believed that it would help towards efficiency, in emergencies and for immediate action requirements. Those against the statue believed it would give arbitrary and exploitable power to the executive, an opinion which is being proven to be true through the history of ordinances. Often times the governments uses ordinances as a method to surpass legislations which are pending in parliament, effectively reducing the validity and stature of the people’s representatives. They also use it to assert their political prowess and to validate their political agendas without due process.
There have also been instances when the government re-promulgates an Ordinance with the purpose of prolonging its applicability. This was done with the Securities Laws (Amendment) Ordinance, 2014 twice which begs the questions of the extent of sovereignty as to law making of the parliament. Similarly, the Indian Medical Council (Amendment) Ordinance, 2010 was re-promulgated four times. This happened despite the SC verdict in 1986 condemning such action. The then Chief Justice P.N. Bhagwati observed in the 1986 constitution bench case of D.C Wadhwa v. State of Bihar that such use of Ordinances could not be allowed as it was perversive “to serve political ends”. It was considered contrary to all democratic norms. This opinion was furthered by a seven-judge bench in the Supreme Court case Krishna Kumar Singh v. State of Bihar (2017) when they said that re-promulgation was a fraud on the Constitution and sub-version of democratic legislative processes.
Apart from using Ordinances as a means to assert extra-legislative powers, the Centre has also used it to patronizingly sooth the public’s demands. This was evident by the BJP government’s Criminal Law (Amendment) Ordinance, 2018 post the Unnao rape case. It was a poorly drafted and counter-productive ordinance which was promulgated to contain the public outcry and to save face. They were fearful of how the public would react if they considered the people working for the government to be a threat to women’s security, especially after the Nirbhaya rape case.
The current Central government promulgated nine ordinances within the first eight months of its rule. In 2019, they also cleared as many as five ordinances right before the election season and the model code of conduct became applicable. Many of these, such as the Jammu and Kashmir Reservation (Amendment) Ordinance, 2019 was clearly more politically motivated than legislatively. During its long rule the BJP government has passed several ordinances to actually help legal processes such as the Indian Medical Council (Amendment) Ordinance, 2016, however it has issued many of them to fulfill political needs. One intrinsic fallacy 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 squarely outside the scope. Misuse of ordinance has become so popular that the term “Ordinance Raj” became commonplace as a signifier of this abuse by the current government.
In February 2019, the BJP 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 of the governments’ choosing. Further, all proceeds from the same would go to the government. This was done right after the 248th parliament session as the bill regarding this was still pending when the session concluded, which would make it lapse. The reason for immediacy given by the government said that it would promote ‘ease of doing business’. Such reasoning seems insufficient to issue an ordinance which is strictly to be used during emergency situations.
As recent as June 2020, the BJP government released three ordinances as part of the COVID-19 relief package to supposedly help farmers. Many experts have opined that such ordinances firstly, do not help the farmers but only the big agri-corporations and secondly, that they have no relation to the pandemic and are thus not urgent. There was no urgency in passing 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 due to the pandemic either, which makes us question whether it was valid to bypass the Parliament.
Another instance of misuse, by the Congress government, was when they tried to issue an ordinance to protect convicted lawmakers from immediate disqualification, even though there was a Bill pending regarding the same matter in the Parliament; the Representation of the People (Second Amendment and Validation) Bill, 2013. The ordinance was only revoked after huge public outcry against the same, after which the Congress simply backed away from its own stance claiming to have changed its mind. This was blatantly against the rules given under Art. 123 which specifically mention that there needs to be a requirement for urgent action. Furthermore, it attempted at surpassing the parliament’s law-making power despite there being no need to do so, especially because there was a bill regarding the same dispute pending.
Between 1952 and 2014, there have been 637 ordinances and in 2020 alone there have been twelve. The highest number of ordinances (99) was seen during the controversial reign of Indira Gandhi between the years 1971-77. Despite both Articles 123 and 213 mentioning pre-requisites to be fulfilled while issuing ordinances, they are rarely adhered to. Usage of tactics such as re-promulgation only further questions the fundamental legislative supremacy the parliament has. There have been judicial decisions which outrightly tell the government to scarcely and carefully use the powers under Art.123 and 213, yet the same casual manner is evident in the government. Such abuse of power goes against what our democracy stands for and it infringes on the principles of separation of power. It is turning into a means of unethical parallel law making by a body which is not competent to do so. If this continues to be the case, the democratic structures that we have spent years refining and enriching will easily be brought under scrutiny.
