BJP Ordinance Raj
By Poonam I Kaushish
The only real mistake is the one from which we learn nothing. A lexicon which fits the latest BJP-AAP squabble over the Centre promulgating an ordinance Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 Friday, in a bid to nullify Supreme Court’s Constitution bench ruling that handed over reins of “services”/bureaucracy to Delhi Government by underscoring importance of the people’s mandate in a democracy expressed through an elected Government. AAP has moved court for a review of the verdict thereby setting the stage for renewed confrontation.
Justifies BJP, “Delhi is a Union territory with special status where Center plays a crucial role. The AAP Government is trying to shield itself from ongoing corruption cases by transferring officials. We are trying to save Delhi’s administrative system. It’s a trivial non-issue being blown out of proportion”.
Predictably, post Congress victory in Karnataka, the Ordinance has given another leg-up for Opposition unity. Said a senior Congress leader, “It is a clear sign of a poor, bad and graceless loser and a way to subvert the democratic process. By promulgating it at midnight of the day Supreme Court went on vacation, BJP has again eroded democratic norms and reduced Parliament to a rubber stamp. To what extent Constitutional principles can be diluted by the Ordinance and whether Parliament as a whole will at all approve this is another aspect we will examine. Can an Ordinance simply reverse the democratic process?”
Notably, many arguments are being bandied to justify the decision: That ordinances are necessary when the Executive feels a judgment overrides a fundamental priority. That many Governments have used them. That many countries use special arrangements in governance of national Capitals. That the Court itself noted Delhi Government’s powers are subject to Parliament’s laws and hence Centre is within its rights to enact a new governing body.
However, there is no gainsaying the Constitution has a few anti-democratic instruments embedded in it, of which the Ordinance-making power is one such that remains in India’s statute book though it has grown out of fashion in most other mature democracies. Though supposed to be used sparingly and in cases where due to pressing urgency, the superior alternative of a well-deliberated law where Opposition and society, too, had their say isn’t available.
The Constitution allows the Government to use the ordinance route when Parliament is not in session and an emergency situation requires the Government has to respond immediately by making changes to a piece of legislation or bring in fresh legislation. Once the Union Cabinet clears it and President gives his assent, the ordinance becomes law.
However, the Government should table the Ordinance before Parliament within the first six weeks of its sitting. The ordinance should be brought out in the form of a bill, where the Parliament after due deliberations can choose to approve it or reject it completely or pass it with any modifications. For any reason, if this due process is not followed, the ordinance lapses after the stipulated time frame. Alternatively, the President can withdraw the ordinance. It is also compulsory for a session of Parliament to be held within six months.
Undeniably, while virtually every Government has used the ordinance route to make laws, it has become controversial under the Modi Government over the way it has been used. Remember, the Centre’s three farm laws which met with widespread protests were initially brought through the ordinance route in June 2020. All three were replaced by laws in Parliament during its monsoon session that year. But a year later due to farmers persistent year-long protest the laws were repealed.
According to PRS Legislative Research and Lok Sabha data the UPA Government promulgated 61 ordinances between May 2004-2014. But the Modi-led NDA has passed over 76 bills via ordinance since its came to power in 2014. Surpassing UPA’s 10 years rule, suggesting the Government’s preference for quicker Executive route to enact laws and tearing hurry to push legislative changes without Parliament’s consultation and approval.
Pertinently, over 679 ordinances have been issued from 1950-2014 that averages to 11 per year or one ordinance a month. Of these 456 were issued in 50 years by 6 Congress Prime Ministers. Nehru cleared 70 ordinances between 1952-1964, daughter Indira Gandhi issued 77 during 1971-77 (roughly three every two months), Rajiv signed 35 in 5 years. All three were running majority Governments in Parliament. Narasimha Rao’s minority Government passed 77 ordinances in its five-year term. Yet the Congress attacks Modi Sarkar.
Interestingly, the Left-backed UF Government supported by Congress from outside, passed only 61 Bills during its 1996-98 term under two PMs, Deve Gowda and Gujral, but issued a record 77 ordinances at a strike rate of more than three per month!
The Vajpayee-led NDA Government issued 58 ordinances between 1998-2004, at a strike rate of almost 9 per year. Manmohan Singh’s UPA I Government issued 36 ordinances and UPA II issued 25. Which means UPA took recourse to ordinances 6 times a year in its 10-year term.
Not many are aware, during the Constituent Assembly debates, serious apprehension were expressed about resorting to ordinances as a means to enact a law. KT Shah is on record to say, “promulgating an ordinance is a negation of the rule of law”. His concern was that even when the “Government issues an ordinance to rise up to ‘extraordinary circumstances’, we must not overlook the fact that it was passed without debates and discussion.”
The Supreme Court in the Krishna Kumar (2017) case held that ”re-promulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source of law-making authority in a Parliamentary democracy”.
True, the NDA Government often cites people’s mandate and betterment to underline the legitimacy of their actions and policies. By the same token the AAP’s Delhi Government too represents people’s will. However, Delhi’s case is a talismanic test of checks and balances in the face of an overweening Centre, Executive and Legislature. Even as Parliament has the power to enact laws democratic federalism too is paramount.
What next? Clearly a long and hard battle lies ahead for bringing a change in the political system and the present political ethos over ordinances. It is not only about BJP vs AAP or X,Y,Z. Routine assaults on democratic sensibility are unacceptable. As political morality and accountability are supreme for good governance and stability.
For even as one builds a big machinery of political power which brooks no checks and balances, one needs to remember they won’t always be there to run it. Consequently, there is no place for lies and deceit in a genuine democracy. People don’t deserve squabbles. — INFA