Govt takes over law-making powers

Dr S Saraswathi

The President has expectedly given his assent to the Food Security Ordinance. Presented as a "game changer" and "life saver for many people" by UPA-II, the ordinance route is sought to be justified as an urgent move to feed the hungry on the verge of death. The nation may rejoice in the illusion that hunger will be eradicated from this country well before 2014 elections and long before the stipulated date of 2015 under the Millennium Development Goals.

However, this ordinance has raised more questions on the use of ordinance-making power of the Government than the merits of its provisions. Many leaders of the ruling parties blame the Opposition for stalling Parliament for entire sessions and compelling the Government to resort to the ordinance route. Neither the cause for disruption of Parliament nor the sudden emergency for food security law is touched pointedly.

The National Food Security Bill was introduced in Parliament in December 2011. The Standing Committee examined the Bill and gave its recommendations. Thereafter, an amended Bill was introduced in Parliament kicking off a debate. From the public statements made by various political parties, it is clear that there is no consensus among them on the Bill as it is drafted. Even allies and reliable "outside" supporters of the ruling UPA have some strong reservations which can be resolved only through a thorough debate in and outside Parliament. The matter is important for everybody and also involves tremendous public expenditure, roughly estimated at a whopping Rs 125,000 crore annually.

It, therefore, deserves national consensus for proper implementation. The cooperation of State governments is a prerequisite to enforce the ordinance as food is in the Concurrent list and States rightly have to share the responsibility. They have vital interests in production and distribution of food stuff and are operating the Public Distribution System. Some States, such as Tamil Nadu, Andhra Pradesh, and Chhattisgarh, are running an effective PDS going beyond what is offered under the ordinance. Hence, the ordinance raises diverse questions on propriety, utility, and practicability of exercising executive law-making power on this issue.

The term "ordinance" meaning "that which is ordained by authority, fate, etc." and commonly used for religious decrees, means in its verb form "to ordain: to coordinate, order". Ordinance-making power is granted to the Executive at the Centre and in the States under Articles 123 and 213 of the Constitution. Under Article 123, the President has the power to promulgate ordinances during recess of Parliament on any subject on which it can enact laws if he/she is satisfied that circumstances exist which render it necessary for him/her to take immediate action. Such ordinances have the same force and effect as an Act of Parliament. A similar power is granted to the Governors of States to promulgate ordinances during recess of State legislatures on any State subject.

This power of the Executive to enter into the domain of the legislature with authority can be traced to British rule in India. The Governor-General was vested with such power to meet threats to safety and security of the Empire and protect British interests in India. The Government of India Act 1935 empowered the Governor-General to "act in his discretion" or in "his own judgment" while exercising powers in specific matters under his governance and administration. They could issue ordinances even when the legislatures were in session.

This provision in the 1935 Act is retained in the Indian Constitution with the difference that the President has to act on the advice of the Government and has no discretion in the matter. The ordinance-making power is a legislative function and presently, it can be used only when Parliament is not in session. Ordinances are allowed on fiscal matters also. However, all ordinances are subject to review and can be challenged in court. Every ordinance promulgated under Articles 123 and 213 should be laid before both Houses of Parliament and State legislatures respectively, and unless passed by them within six weeks from the date of their re-assembly, will lapse automatically.

Over 200 ordinances have been promulgated by the Union government so far. A maximum number of 34 ordinances were issued in 1992; in 1974, 29 were issued. Among the States, Bihar has an unsurpassed record of ordinance rule and the practice of re-promulgating these also. In 1970, the Supreme Court in the judgment in Cooper vs. The Union of India stated that the exercise of the power to promulgate an ordinance is "strictly conditioned". It said: "The satisfaction relates to the existence of circumstances as well as to the necessity to take immediate action, on which the satisfaction depends, is not declared final".

The satisfaction of the President is subjective and could be challenged on the ground of 'malafides". Obviously, there could be and there have been something more than exigencies of a situation in resorting to the ordinance route. The ordinance on food security also faces legal challenge in the Supreme Court. A Public Interest Litigation has raised constitutional questions regarding emergent situations necessitating it, and its use for political propaganda for electoral purposes by the ruling alliance.

The Constituent Assembly was aware of the potential of the ordinance-making power of the Executive and discussed this matter at some length as there was no unanimity among the members. In fact, during the Freedom Movement, the Congress had been vehemently opposing the ordinance-making power of the Governor-General. The Constituent Assembly has accorded law-making power to the Executive to be used in extraordinary circumstances and to take immediate action if necessary. In the opinion of Mavlankar, the outstanding Speaker of the Lok Sabha, conveyed in his discussions with Jawaharlal Nehru, "The procedure for promulgation of ordinances is inherently undemocratic". Whether the issue is justifiable or not, promulgating an ordinance was said to have a psychologically bad effect.

Pandit Hridayanath Kunzru even questioned the argument of emergent situation demanding urgent law. He stated that if there was such an emergency, Parliament should be summoned as early as possible. He favoured vesting the Executive with adequate power to maintain peace and order without the need to assume law-making power. Evidently, parliamentarians at that time were only thinking of disturbances to law and order and war-like situations and did not anticipate exercise of this power for such a peaceful task as providing food security. This is not the first time that controversies have erupted over an ordinance. Bank nationalization, for instance, was done in 1969 by one such ordinance. So also, MISA was amended.