Has The Ordinance Raj Come To Stay?
By Raghavan Srinivasan
15 January, 2015
Countercurrents.org
In recent days, the central government has introduced a slew of ordinances related to land acquisition, raising cap on foreign investment in the insurance sector, coal and mineral mining license allocation, changes to the TRAI Act and so on. Several governments in the past, including the earlier UPA regime, have used the ordinance route to push through legislations which they have found difficult to get passed in the legislature. What is the ordinance route and does it benefit the people?
Article 123 of the Indian Constitution gives the right to the President of India to promulgate an ordinance if neither House of Parliament is in session and “circumstances exist, which render it necessary for him to take immediate action”. Every ordinance has to be presented to Parliament, and ceases to exist six weeks from the end of the next sitting of Parliament. Since the Constitution requires that Parliament be convened at least once every six months, ordinances have a de facto expiration period of approximately seven and a half months. Article 213 gives the same power to the Governor of a State.
Ordinance-making power is not a new feature added by the Constituent Assembly to the Indian Constitution. Articles 42 and 43 of the colonial Government of India Act, 1935, gave the same power to the Governor General. So, the power to promulgate ordinances in the hands of the Executive is a definite provision that our colonial rulers made so as to ensure that sovereignty lies in the hands of the Executive and not the people. The new Indian rulers realised that it is to their benefit that this Article is retained in the new Constitution.
Some of the Constituent Assembly members argued that the executive’s power to promulgate ordinances through greater oversight by legislatures. They were overruled by Dr B.R. Ambedkar, who stated that ordinance-making powers were necessary since existing law might be deficient to deal with a situation “which may suddenly and immediately arise”. According to him, it was necessary to “…confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law…” when the legislature was not in session. Later, in many instances, the “particular situation” that Dr Ambedkar mentioned turned out to be situations concerning economic and political reforms in favour of monopoly houses.
The “ordinance route” proved very useful for central governments after 1947 to push through legislation in the interests of their constituencies, which essentially comprised the most wealthy and powerful. More than 41 ordinances were promulgated during the term of the first Lok Sabha itself. In the pre-Indira Gandhi period, that is, before 1966, more than 75 ordinances were passed by the Central government.
Most of these ordinances benefited the large monopoly houses. For example, the Telecom Regulatory Authority of India (TRAI) was created in 1997 first by an ordinance and then by an Act of Parliament. The Minister in charge stated that the ordinance route was taken since “…we were facing difficulties in attracting private investment without an authority like the TRAI. Private investors… were not convinced about our ongoing processes of privatisation and liberalisation.” What this meant was that Telecom monopolies put pressure on the government to bring in a new liberalised regime through an ordinance.
Similarly, the Electricity Regulatory Commissions Ordinance was promulgated in 1998, for rationalising electricity tariffs (meaning hiking tariffs) when the government found it difficult to pass the concerned Bill in the legislature.
Many well-meaning critiques of the ordinance route have been demanding that the legislature and the judiciary should devise some measures to check this high handedness of the Executive. The Supreme Court has tried to interpret the ordinance making power of the President is actually a legislative power given to the President, in times of emergencies, and as such it is different from his/her executive powers. But such efforts to do a judicial review of central ordinances has not met with much success.
An analysis of earlier ordinances reveals that they were most used during Indira Gandhi’s tenure and early and mid-90s (Frontline, Ordinance Route, Aug 9, 2013) when the party in power could not push through legislations using its own majority. This is to be expected since the power given to the executive by the Constitution is to ensure that the will of powerful forces who decide the economic and political policies of the country prevails and not that of people. If their preferred political party is discredited and not able to garner a majority in Parliament, those in power compel the party in power to use the ordinance route to push through legislation for going ahead with their loot and plunder. However, even when political parties had a brute majority in Parliament, they have taken to the Ordinance route. During Nehru’s tenure between 1952 and 1964, the government passed as many as 66 ordinances in spite of the fact that his government had a majority in both houses of Parliament.
The existing Constitution gives vast powers to the Executive to act independently of the elected representatives of the people. The Executive has powers to declare a state of emergency, pull down state governments, and establish administrative bodies without the consent of Parliament.
Our Parliament has been just a talk shop. The opposition parties make a lot of noises about various proposed anti-people legislations, amendments etc. But the executive finally decides on behalf of the ruling class. It is made out that if only the opposition had the majority, then “pro people legislations” could be passed. This is not true. The BJP government has just carried forward certain issues which were not resolved by the UPA regime, when BJP was the main opposition party. Land acquisition legislation, forest rights legislation and others were all passed unanimously by previous parliament. Now they are being amended. Various draconian laws such as AFSPA and UAPA have all been passed thru the ordinance route. Parliament enables the opposition to put on a façade of resistance to the anti-people amendments so that the democratic process is not totally discredited.
What this points out is that real powers lie in the hands of the Executive, not in the hands of the legislature or the judiciary, leave alone the people. The Constitution is designed to give controlling powers to the Executive so that judicial reviews or election verdicts do not come in the way of implementing reforms and ensuring continued profits for the big business houses and monopolies.
To find a solution to this situation, which is not in the interest of the vast majority of our people, we have to look at the Constitution with an open mind. It cannot be treated as a holy cow that is beyond criticism or change. It is a document that has been written and imposed on the people of India by an unrepresentative and unelected body of members in the Constituent Assembly. Our Constitution did not shed the colonial outlook of looking at people as incapable of governing themselves and the need, therefore, for an Executive power above them and unaccountable to them. It is time we address this impasse.
(The author is the President of Lok Raj Sangathan, a political commentator and writer, email: [email protected])
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