The ordinance route has been travelled the most by the Congress, with as many as three ordinances being promulgated by Nehru on the very day the Constitution came into being on January 26, 1950
The Narendra Modi Government is currently under attack for its decision to promulgate a spate of ordinances to fast-track economic reform and to overcome the logjam in Parliament. The Congress and some others in the Opposition have accused the Government of resorting to an ‘ordinance raj’ and questioned the propriety of using constitutional provisions to either pre-empt Parliament or to present a fait accompli before the two Houses. President Pranab Mukherjee too has voiced his concern over this issue.
Article 123 (1) empowers the President to promulgate ordinances if, at any time, except when both Houses of Parliament are in session, he is satisfied that “circumstances exist which render it necessary for him to take immediate action”. Article 123(2) declares that an ordinance “shall have the same force and effect as an Act of Parliament”. However, the ordinance will cease to operate at the expiration of six weeks from the re-assembly the two Houses of Parliament or before, if the two Houses pass a resolution disapproving it or if the President withdraws the ordinance within this time. In other words, if Parliament does not pass a Bill to replace an ordinance within six weeks after it re-assembles, the ordinance will cease to exist. Similar provisions empowering the Governor of a State exist in Article 213.
Article 123 gives the Union Cabinet the power to legislate — a power that is otherwise vested in Parliament under the Constitution — and enables it to intrude into the domain of Parliament when “immediate action” is called for. More importantly, whether or not Parliament later ratifies the decision of the Cabinet and passes a Bill to replace the ordinance, the ordinance, during its life span “shall have the same force and effect as an Act of Parliament”.
In other words, even if Parliament disapproves an ordinance or fails to pass a Bill to replace it, all actions taken by a Government during the life of the ordinance are deemed to be constitutionally valid. Starting from the day the Indian Republic was born, successive Governments at the Centre have liberally and at times recklessly, used Article 123 to further their agendas.
Congress president Sonia Gandhi has been rather vocal on the issue of ordinances. She recently said that by taking to the ordinance route, the Modi Government was “undermining democratic institutions”. The Congress’s criticism of ordinances, however, lacks merit in the light of available evidence vis-à-vis the promulgation of ordinances.
The history of presidential ordinances since the Constitution came into being, is available in a lok Sabha Secretariat publication. This chronological compilation tells us a lot about the attitude of the Union Government vis-à-vis ordinances in the first 46 years of our Republic. Strange as it may seem, as many as three ordinances were promulgated by the Jawaharlal Nehru Government on January 26, 1950 — the very day the Constitution came into being. They were The Parliament (Prevention of Disqualification) Ordinance, 1950; The High Courts (Seals) Ordinance, 1950 and The Judicial Commissioner’s Courts (Declaration as High Courts) Ordinance, 1950.
Also that year, the very first year of our Republic, the Government promulgated 21 ordinances. In fact, as many as 101 ordinances were promulgated during Nehru’s prime ministership from January 26, 1950, till the date of his death in May 1964, and over a 100 more between August 15, 1947 and January 26, 1950. Although he had expressed himself against ordinances prior to India’s independence, he resorted to it without qualms after independence. Thereafter, during Indira Gandhi’s prime ministership, as many as 208 ordinances were promulgated. Rajiv Gandhi’s ‘ordinance score’ was 37. PV Narasimha Rao, the other Prime Minister from the Congress ranks, sent 108 ordinances to the President. Add this up and you find that around 500 ordinances were promulgated from January 26, 1950, to the end of 1996; and the Congress alone accounted for 454 of them!
Athough the Congress may not be the best advocate against ordinances, there can be no two opinions about the inadvisability of the ordinance route, especially because an ordinance has the same effect as an Act of Parliament, but its life span is completely unpredictable. However, what is a duly elected Government supposed to do when its legislative intentions are constantly stymied in the Rajya SabhaIJ
The issue of ordinances promulgated by the President and the Governors has been the subject of litigation before the Supreme Court. The apex court has generally upheld the legality of ordinances and of the actions taken while an ordinance is in force. Similarly, if the issue is one of separation of powers and questions are raised about the locus standi of the Union Cabinet to usurp the power of Parliament to legislate (even temporarily), the Supreme Court has dealt with this in the Member of Parliament local Area Development Scheme case. One of the grounds on which this scheme was challenged was that it violated the principle of separation of powers in the Constitution and allowed legislators to intrude into the space demarcated for the executive. The court said the Constitution did not prohibit overlap of functions, but in fact provides for some overlap as a parliamentary democracy. It said that separation of powers was an essential feature of the Constitution, but in modern governance, “a strict separation is neither possible, nor desirable”.
Over the last quarter of a century, one of the biggest paradoxes of our representative democracy is that no duly elected Government at the Centre has enjoyed a clear majority in the Upper House of Parliament. With the emergence of strong regional parties in the States, the two national parties which have formed the fulcrum of Governments at the federal level, do not have enough members in State Assemblies to win a good number of seats in the biennial elections to the Rajya Sabha. As a result, while a party or a coalition wins the peoples' mandate in the lok Sabha election, the absence of a majority in the Rajya Sabha cramps its style.
This can become frustrating with the passage of time. Add to this, the highly confrontationist approach of the Opposition and its reluctance to acknowledge the popular mandate in the parliamentary election, and you have a recipe for unconventional actions. In the absence of some amount of give and take between the ruling party and the opposition parties, the Government may even be compelled to call a joint sitting of the two Houses of Parliament, in order to legislate and carry on its legitimate duty to govern the country.
Whom shall we blame for thisIJ