|With two ordinances on Monday, the new government has achieved a record of sorts: there have been nine ordinances so far in about seven months. The ordinance route is emerging as the instrument of the Modi model of governance. The government in fact began the business with an ordinance – amending the TRAI law so that its former chairman Nripendra Mishra can be made principal secretary to the PM. Among nine is one, allowing auction of 24 coal mines, which is re-promulgated. At this rate, over five years, we may end up with more than 70 ordinances – unless the NDA gains upper hand in the upper house.
For comparison, the average is about 10 ordinance a year since 1952, but according to the PRS Legislative Research the average for the past decade (the UPA years) is six a year.
The ordinance route, as Rajnath Singh and other BJP leaders put it last year when the Congress was resorting to it, certainly bypasses parliament. The UPA resorted to this trick also when a similar bill was pending in parliament, for example, the Criminal Laws (Amendment) Ordinance, 2012 and the controversial National Food Security Ordinance, 2013. It also re-promulgated ordinances not passed by parliament, for example, the Indian Medical Council (Amendment) Ordinance, as pointed out by PRS Legislative Research.
The Congress certainly set the precedent, but that precedent is no justification today. The justification has to be in accordance with what the constitution envisaged. The constitution permits promulgation of ordinance when parliament is not in session, and where “immediate action” is warranted. A supreme court judgment also held that this approach should be used only in extraordinary situation.Link
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So, have there been nine extraordinary situations warranting immediate action? Some of the nine ordinances may have merit, and may fit the “immediate action” criterion – the coal auction one for example is directed by the supreme court, and would be sorely needed to get the economy going. But not all.
What is happening, in short, is that some power of parliament is being usurped by the executive. In other words, the elected representatives of the people and of the states are supposed to put a check to the executive’s doings, but the latter is not allowing it to do so – and for this it is using a leeway provided in the constitution, albeit for other purposes. Of course, this is an ongoing trend, only exacerbated in recent months.
As a result, the economy may or may not gain in health but democracy is surely losing. There must be some reason why the US and the UK, among other democracies, do not have this provision. Their way is: If there is urgency, call a joint session of parliament. The PRS Legislative Research backgrounder we have been quoting from even argues for a review of this provision. But then we will have to wait for a prime minister who would curtail his or her own powers.