Ordinance

Amid all the ongoing debates in the media for and against the ordinances being promulgated by the central government, let us have a look at what an ordinance in Indian context is.

According to the Constitution of India, the power of making laws rests with the Legislature. A bill introduced by the government needs to follow the due process of discussion/debate, voting in Parliament and finally must get assent from the President. It becomes an act after being notified in the gazette and the responsibility of enforcing the provisions of law rests with the central government.

However as per article 123 of the Constitution, in the situations of emergency and if both houses of Parliament are not in session, the President can promulgate an ordinance upon the advice of union cabinet. The President would do so only if he is convinced that there are circumstances necessitating immediate actions. Otherwise he could return the ordinance for reconsideration.

Once the Presidential assent is obtained and is notified, the ordinance is, in all terms, equivalent to a law passed by the Parliament. But every ordinance must be tabled before the Parliament and must be ratified within six weeks of immediate next session of Parliament following the ordinance promulgation. The ordinance would lapse and ceases to exist if the government fails to table it in the Parliament within the time limit. Since the Constitution mandates the convening of Parliament session at least once in every 6 months, ordinances have a de facto life time of nearly seven and half months. The President is entitled to withdraw the ordinance any time before it is tabled in parliament.

The Parliament after debate can choose to pass the bill (relevant to ordinance) or reject it. If the Parliament chooses to disapprove it, the ordinance becomes void with immediate effect. A Supreme Court judgement reading "Everything that was done when an ordinance was in place remains valid" provides safeguards for the government's work in enforcing the ordinance in case of parliamentary disapproval at later stage. If the ordinance lapses without being tabled in Parliament the government can choose to re-promulgate it. However repeated re-promulgation, though not prohibited by Constitution, is against the very spirit of democracy underlying Indian Constitution. But many governments have done and continues to do re-promulgation.

Brief History of Ordinances:
The ordinance route is not new in Independent India. Sections 42 and 43 of Government of India Act, 1935 have empowered Governor General to promulgate an ordinance in situations he deemed necessary to take immediate action. Many debates have happened in the Constituent Assembly before this provision is included in our Constitution post independence. A group of members had argued against it saying it is against the democracy as it vests the power completely with the ruling party. Another group of members including Dr.B.R.Ambedkar had argued for it citing its necessity in case of emergencies. Finally the provision had been included in the Constitution with a check that it needs to be ratified by the Parliament within six weeks of immediate next session. Interestingly many democracies in the world including UK and USA do not have ordinance provision and they need to convene Legislature to deal with emergencies.

Statistics:
There has been a deliberate misuse of this provision in the Constitution by many governments since 1952 to subvert parliamentary procedures on grounds of delays by parliamentary standing committees and lack of conducive environment in the house to table the bill. Many reasons provided do not stand the scrutiny of "deemed necessary to take immediate actions" clause of article 123(a), but continue to be used. The following chart shows the number of bills passed and ordinances promulgated during various Lok Sabhas from 1952 to 2014 (UPA-II) with a total of 637 ordinances. The current government has 8 ordinances to its name till date taking the total tally to 645.

Source: http://www.prsindia.org/

Above chart shows a large number of ordinances being promulgated in the decades of 1970's and 1990's. 1970's had stable governments most of the time and in 1990's we had coalition governments all the time. So it is not possible to conclude that unstable governments can lead to more ordinances. It is rather dependent on the government in place and how they perceive things.


P.S.: This article is not intended to argue for or against the ordinances in the past or by the current government. The need and urgency of ordinances is subjective and is better left to the judgement of constitutional and legal experts.


JAI HIND!

NOTA

NOTA refers to 'None Of The Above' option in EVMs (Electronic Voting Machines), which we are going to witness from the forthcoming general elections in five states thanks to Supreme Court of India's recent judgement. It will unleash the true power of democracy and give the ultimate power to people.

All of us have studied (in theory), that in India (of course true for any democracy), the government is of the people, by the people and for the people. I am not going to remain unrealistic by saying that it is being governed in practise too. A unique feature of such a democracy where people are of highest importance is the "Right to Vote" (Universal Adult Franchise). People have the right to choose a representative, a government which will govern them for the next 5 years( with the exception of J&K where it is a 6-year term). However, often when people are confronted with a limited set of candidates to choose from, during elections, they are indeed forced to choose the least worst candidate. A person who has been declared a winner is not endorsed by all the people( need not even be endorsed by more than half, thanks to First-past-the-post system being followed in India). Not only admiration towards a particular candidate, but also hatred towards an opposite contestant can decide the winner in such a scenario. So, the question here is by limiting the choice of people, Are we allowing them the full power in choosing their representative? Will that not be a pseudo-democracy?

This question has been in the mind of many stalwarts for a long time. Even the Election Commission (EC) of India has been considering this for quite sometime, but it does not have the executive or legal power to tackle this. Many NGOs have been fighting for an alternative called NOTA (None Of The Above), where people can say that they are not interested in any of the candidates that are in election fray. The recent supreme court's verdict and EC's will to comply immediately with it are landmark in a way that it rests much power with people in regard to choosing a representative.

A quick fact: Most of us are unaware that under Rule-49 of conduct of election rules, we may decide not to choose any of the candidates in fray but can cast vote so that our vote is counted in voting percentage currently. However, under current system such a voter has to tell about his decision to booth officer and then record his/her signature in form 17-A, thus making his identity public. NOTA option does away with this and it gives much needed anonymity apart from other possibilities such as making all candidates ineligible.

Pros: 

1) It gives true democratic character where people can say no to all candidates in election fray

2) It will create interest among those not utilising their right to vote having vexed with the political system and looking at all sorts of criminals being promoted by major political parties as their candidates

3) This can create a sense of responsibility among all major parties while deciding their candidates leading to a systemic change

What it may not do: 

The decreasing voting percentage in India can not be wholly attributed to perception towards current political system. It has a lot to do with other factors such as inherent laziness, staying away from constituency for job etc., So, we may not see the sudden upsurge in the voting percentage and people thronging the voting booths to cast their vote. ( Is "Compulsory Voting" an alternative? Well, much debate is needed on this.)

More clarity is needed on:

1) Whether an election will be recalled, if the percentage of votes polled for NOTA option is the highest or is the NOTA vote treated invalid( as practiced in some parts of USA) ?

2) Whether EC will implement a threshold on voting percentage (say 33%) to decide on whether to re-conduct the elections?

2) How many iterations of elections will be conducted if there are constant votes of >threshold or majority share for NOTA option?

Though the picture is slightly grayed currently (which will become clear in December when 5 Indian states go for elections), a step in that direction to reform election system and to decriminalize politics is commendable matter and it increases the hope of aam-aadmi(common man) and makes his dream of seeing an effective governance a near( little fuzzy on near definition here though) reality.

JAI HIND!