The ordinance is expected to provide a clear legal support for extinguishing the demonetised Rs 500 and Rs 1000 notes that are not returned by December 30 by amending the Reserve Bank of India Act. While steering clear away from the demonetisation debate, it’s time to critically look the instruments that are at the disposal in the hands of the government of the day and how they are utilised for different outcomes. The particular instrument in question is the ordinance route.
Ordinances are temporary laws which can be issued by the President when Parliament is not in session on the advice of the Union Cabinet. During our Constituent Assembly debates some members called for restricting the executive’s power to promulgate ordinances. Understandably they were wary of the misuse of ordinance-making powers by the British colonial government. However, Dr BR Ambedkar insisted that these powers are necessary since the existing law might be deficient to deal with a situation “which may suddenly and immediately arise”. According to him, the only solution was 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. It is clear that the framers of our Constitution envisaged ordinance-making powers only for unforeseen, sudden situation and where the executive required additional legal sanction to address the situation.
The necessity of promulgating ordinances has always been debatable, but according to Anirudh Burman, a legal researcher at the National Institute of Public Finance and Policy, the application of ordinances has been that of misuse, if not outright abuse. Since the beginning of the first Lok Sabha in 1952, 637 ordinances have been promulgated. This number does not include the ordinances promulgated by Prime Minister Modi’s government since he came into power. Up till December 2014, the Modi government already ranked sixth out of 16 parliamentary terms in ordinance use as per the Wall Street Journal. This does not include the 17 odd ordinances promulgated since.
Historically, ordinances have been promulgated in periods characterized by a muscular executive and a comparatively weak or unstable Parliament. Mrs Indira Gandhi’s government during the years of the Emergency in the 1970s is a case in point. Another proactive period was the early and mid-1990s, a period characterized by weak coalition governments and macro-economic uncertainty. With the first parliamentary majority in three decades, the need for the present dispensation to resort to the ordinance route is discomforting. This current embrace of ordinances in a period of stable Parliament should be taken with a pinch of salt. One finds that ordinances are being utilised at a higher rate than the average of past governments. Important as it is to send out a signal of commitment towards previous policy announcements, it is hard to make a case that immediate action without discussion was necessary in most circumstances. Critical legislations that impact millions of people, such as the land acquisition, and enemy property were promulgated as ordinances. Clearly ordinances have become a political tool rather than a tool for effective governance. Executive decisions to pass Bills through ordinances will erode parliamentary processes, a trend that is linked to deteriorating functioning of our legislatures. The present breakdown of political dialogue and compromise is glaring.
Moreover ordinance-making has offered little recourse to affected parties. The fact that the government of the day has broad and unrestricted power to promulgate ordinances is proving to be antithetical to the checks and balances in our democratic system of governance. Indeed, the sitting government has to take approval from Parliament within six months of promulgating an ordinance. However one is given to understand the government is at liberty to promulgate the same ordinance multiple times without reproach.
A check against the (mis)use of ordinances can be the strong judicial review on the grounds of promulgation. Unfortunately, the courts have refrained from scrutinising the motives of legislatures which is the essence behind this tool. Instead they have chosen to comment on the constitutional validity of ordinances as a tool which is intact. In Anirudh Burman’s view, “the approach of the apex court has been to protect the sanctity of this power (ordinance-making) of the executive rather than subject it to strict review”.
Legislative action by virtue of the ordinance route poses a moral hazard on behalf of the government. Since the government has been immune to the consequences of judicial review, there is a lack of incentive to guard against the risk of overreach. A simple analysis confirms this trend. The annual number of ordinances being promulgated is on an upswing since the latter half of the Manmohan Singh government’s second term. With our Constitution giving vast powers to the executive to act independently of Parliament, we must be careful when the executive begins to use tools such as ordinances to push through reforms outside the usual legislative scrutiny.
It is clear that the ordinance-making power of the executive needs to be restrained to restore the balance of power between the executive and the legislature in India. Over the past decades, governments have liberally used this tool and hence set the stage for more use on populist/contentious issues without the scrutiny of Parliament. It is about time the ordinance route was revisited.
(The author is a policy analyst. Follow on Twitter @rohitrrs.)
