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!
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.
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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!
Excellent post!! Enjoyed reading it!
ReplyDeleteThe P.S wasn't necessary, though. Your post is as neutral as it can get. :)