Parliament power at stake?

The ordinance route laid by the UPA governments is being followed by the NDA now, but not without criticism.
Since the winter session of Parliament that ended on 23 December 2014, the NDA Government has issued four ordinances to push through vital economic reforms. These relate to enhancing FDI in insurance sector, auction of coal mines, auction of minerals 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.

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 regularise 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 these 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 638 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.

This ordinance 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. The Supreme Court held that the need for immediate action to bypass Parliamentary debate could be challenged in a court of law.

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. 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. Ordinance route is rather dangerous when Opposition presents views that deserve a debate. That 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.

By: Dr S Saraswathi