Misuse of Ordinance Power: 11 ordinances issued by UPA-II so far in 2013
Ordinance, which is a power given to the executive to promulgate a law when the parliament is not in session, stands out as a provision of the constitution which is severely misused by the UPA-II government. The government has an axe to grind while using this remarkable measure of the constitution created to deal with extra-ordinary situations.
So far in 2013, the government has issued 11 ordinances – the Criminal Law Amendment Ordinance, the Securities Laws Amendment Ordinance, the National Food Security Ordinance, The Indian Medical Council (Amendment) Ordinance, ordinance to redraw electoral constituencies, etc are few such ordinances which have been promulgated so far in 2013. The infamous ordinance aiming to benefit the convicted lawmakers (MPs and MLAs) by overturning the recent ruling of the Supreme Court is one among the 11 ordinances so far sent to the president by the UPA government.
An ordinance in plane words is an instrument in the hands of the executive to make law. In a democracy like India, there happens to be the principle of separation of powers, wherein the legislature (Parliament/state assemblies) has been given the prerogative to make laws. However in the scenario where the parliament is not in session or when some extra-ordinary or emergent circumstances exist where the normal route of legislation can’t happen, then under the article 123 of the constitution, the President of India is empowered to legislate by promulgating ordinances. Ordinances carry the same force and effect as a law and in all respect are similar to a legislation made by the legislature. Therefore, it implies that it has similar limitations like ordinary laws i.e an ordinance may be declared null and void if it goes to violate the constitutional provisions, such as the fundamental rights etc.
Dr. BR Ambedkar, president of the drafting committee of the constitution, made it clear that he saw the power as one is necessary but that should be used only in case of an emergency: “The emergency must be dealt with, and it seems to me that the only solution is to confer upon the President the power to promulgate the law which will enable the executive to deal with that particular situation…because the legislature is not in session.”
In reality, it is the government i.e. the prime minister and his cabinet that clears the ordinance and puts it up to the office of the president for his assent. Thus, all ordinances carry the sanction of the government. In effect, ordinance is the backdoor option available to the government to make law on a subject which it considers ‘urgent’ in its own opinion. This urgency many a times happens to be determined by pressing political needs and thus it gives a massive political leverage to the governments in power to manoeuver itself out of tricky situations.
However, in the matter of promulgating the ordinance, the constitution also puts onus on the president in so much as it provides that the President should satisfy himself that in the matter of promulgation of ordinance circumstances exist which render it necessary for him to take ‘immediate action’. Yet, despite this caveat, many a time crucial laws are promulgated through the route of ordinance without taking them through the rigours of the legislative process. Of course, such promulgation automatically lapses within six weeks of convening of the parliament if the same is not passed by the legislature within that period.
But, the UPA government has been making good use of this provision by simply rolling over the ordinance as in many cases it has simply let the ordinance lapse when the parliament sat and after the session was adjourned, the govt. resent it to the president to re-promulgate the same. The president has obliged the government by re-promulgating the ordinance. The same has happened in the case of the ordinance related with redrawing the electoral constituencies keeping in view of the changes in the population of SCs and STs over the last decade; this ordinance has been re-promulgated thrice this year. Similarly, the ordinance giving greater power to the SEBI to act against the violators has also been promulgated twice in 2013. Thus, obviously, the president is not exercising his wisdom while assessing the need of promulgating an ordinance by bypassing the parliament. Emergency happens in rare cases hence such situations of bringing forth an ordinance should be a rare event and not a routine exercise. It was because of the political opposition, media coverage and a rare public outcry that the president hinted at returning the ordinance aimed to shield the convicted MPs and MLAs or else the same would have been promulgated silently.
The recent ordinance controversy should work as an eye-opener for the UPA government to stop taking recourse to the route of ordinance in situations where, except for political exigencies, no urgency is justifiable. Or else, the government will continue to have egg on its blushed face.
Krishna Kumar@ThoughtPourri 2013