Read the first part of how the Modi Government systematically made Parliament irrelevant here.

The Narendra Modi government started a new tradition in 2015. They declared November 26—the day the Constituent Assembly adopted the Constitution of India in 1949—as “Constitution Day”.

The idea is to annually commemorate the epic Constitution of India, and recommit to the ideals and ideas it expresses. So it’s rather amusing that this government has been violating some very crucial provisions in the great book to subvert the Parliament’s role in Indian democracy.

The worst of it is the consistent exploitation of Article 123 of the Constitution.

Ordinance Raj

There is a provision in the Constitution which allows laws to be passed temporarily when Parliament is not in session. Article 123 says:

If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require.

This is a temporary measure the government can use if there is an urgent situation requiring the passage of a law. Every government in the past has exploited this loophole to bypass Parliament and pass problematic laws. This government seems to have taken it to a whole new level.

On December 31, 2014, the Modi government issued an ordinance called Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014 (LARR). The proposed law allowed the government to take over any land—without a care for social impact assessment surveys—for purposes like national security, rural infrastructure, affordable housing, industrial corridors, and social infrastructure projects.

This particular ordinance kicked off a bizarre sequence of events.

Since ordinances are a temporary measure, the law requires them to be brought into Parliament in subsequent sessions and pass it. Accordingly, the LARR Bill was introduced in the Lok Sabha. Since the National Democratic Alliance (NDA) has a majority in the lower house, the bill was passed after an intense debate on March 10, 2015. But the LARR was stuck in the Rajya Sabha.

Technically the ordinance should have lapsed, but the government cried, “Have no fear! Article 123 is here!”. They reissued it again. And again.

It’s important to mention that whenever an ordinance is passed, the law is active till it’s brought into Parliament, or it lapses. So by the time the Prime Minister announced they are burying the LARR Bill, this particular law was active for 154 days straight. That’s a little more than five months without the express approval of Parliament to do so. Strangely enough, nobody bothered to check what happened during that period of time, and which pieces of land the government managed to acquire under this law.

Did they even use it? If they didn’t, why did the Modi government keep promulgating the ordinance repeatedly? We’ll probably never know.

This isn’t the only instance of the Ordinance Raj in action. The current government, through President Pranab Mukherjee, also promulgated The Enemy Property (Amendment and Validation) Ordinance in January 2016.

Then they did it again. And again. And again. And again!

Five times!

The situation became so ridiculous that the Supreme Court had to step in and expressly tell the administration to stop pulling these stunts. A seven-judge bench ruled “re-promulgation of ordinances is a fraud on the Constitution and a subversion of the democratic legislative processes”.  

Constitution Day, anyone?

Repromulgation of ordinances was expressly forbidden after this. And thank goodness for that. But it hasn’t completely stopped the government from issuing ordinances without really explaining what the “urgency” is. Last year, they cleared an ordinance to classify bamboo as a grass so that cutting it won’t count as deforestation. A bill was passed in the subsequent session—with minimal opposition—but no real explanation was given why the ordinance was cleared in such a hurry, and what “urgent situation” had required this action.

Another recent instance is the Fugitive Economic Offenders Ordinance, a law which is being used to go after runaway defaulters like Vijay Mallya and Nirav Modi. The urgency here is understood because it looks like these slippery Sams are cheerfully leaving the country and avoiding prosecution in India, while their misdeeds get revealed one after the other.

This bill could have been taken up for discussion in the last Budget session, which concluded on April 6, but it wasn’t. Instead, the ordinance was cleared on April 21 and is currently active. It has become vitally important to keep a watch on ordinances being issued by the government. Who knows what law they’ll sneakily clear next?

Avoiding scrutiny

The main job of Parliament is to hold the government accountable and question them consistently. Ordinances prevent that from happening because laws are passed temporarily without debate or discussion. The government advises the President to clear laws and the President is obliged to obey. In normal non-urgent circumstances, scrutiny and law passage should only happen when the Parliament is in session, and as I mentioned in the first part of this series, our Parliament sits for a woefully low number of days.

This doesn’t mean that the working of the institution ceases completely though. We have Parliamentary Committees—they’re somewhat like mini-Parliaments—which keep discussing issues and scrutinising the government’s performance during inter-session periods.

(Ninja-plug: To know more about what Committees do and how Members of Parliament would use one to declare gajar ka halwa as the National Dessert, watch Episode 4 of Consti-tuition!)

Since Parliament has so many MPs and it’s virtually impossible to let each member air their views about each legislation, that job is taken up by Committees. They are like study-groups which scrutinise proposed laws in detail, from multiple angles, and then generate a report containing their observations. The report is then laid in each house of Parliament so that other MPs can use it to bolster their arguments for and against a proposed law.

Do note that this amazingly thorough process is only possible when a legislation is actually referred to Committees. To put it mildly, this government has a seriously bad track record of sending bills to Committees for scrutiny and deeper study.

Take a look at this:

The Modi government already has a bad habit of bulldozing bills through, passing non-money bills as money bills, and promulgating ordinances without giving explanations. There is no scope for debate or discussion left if you combine all of these tricks at play and—on top of everything—hold Parliament sessions for fewer and fewer number of days.

Throw in the fact that Parliamentary Committees are also not being put to use and…

No to no-confidence

A looming and vitally important question which not many are asking is: Does the Modi government have the legitimacy to run the Central Government anymore? There’s a big reason why this has become a valid thing to wonder about out loud.

In 2014, the Bharatiya Janata Party (BJP) won 282 seats in the Lok Sabha: 10 more than the half-way mark. Today, in 2018, the number is down to 273. This is primarily due to deaths of sitting members and numerous resignations. There are nine vacant seats in the Lok Sabha which are yet to go for elections. With one year to go till general elections, the BJP does appear to be teetering on the edge of majority in the lower house. This is not to say that if the BJP had to prove majority today, it would lose. But there is no way to be certain about this!

In the last Budget session, something other than the “36-minute Budget bulldozing” happened, which should worry a lot of us. The Lok Sabha refused to go for a floor test, and the BJP did not prove majority in the house. The only factor which lets the BJP form government is its strength in the Lok Sabha. So it has to, when required, prove its legitimacy in the house. But that just did not happen.

The Telugu Desam Party (TDP) and YSR Congress put in a no-confidence motion in the Lok Sabha at the very beginning of the last Budget session. Any no-confidence motion has to be supported by more than 50 members—who have to physically stand up in their assigned seats and be counted—just to be admitted. After the motion is admitted, a debate is held and a vote is conducted, where the ruling party has to prove majority in order to continue running the central government.

During the last session, members from both the Congress and Trinamool Congress (TMC) stood up in support of the no-confidence motion, along with the TDP and the YSR Congress. They comfortably crossed the 50-member mark, thus requiring the no-confidence motion to be taken up in the house on a priority basis. But the Speaker refused to do it. She claimed till the very end that she could not count the number of members standing up due to the chaos in the house.

The situation devolved so dramatically that at one point, MPs who wanted to be counted showed up with numbered placards to aid the Speaker.

But to no avail.

Members were seen protesting in the house, disrupting the proceedings, and BJP members constantly blamed the Congress MPs for doing so. The reality, however, was different. It became obvious later that the AIADMK was the one disrupting the house to demand the immediate constitution of the Cauvery Water Management Board for the division of river water between Tamil Nadu and Karnataka. This is a legitimate demand, but it is important to ask whether this was used as a convenient excuse to delay the no-confidence motion proceedings.

The monsoon session of Parliament resumes on July 18, and we are likely to see a repeat of the Budget session. No-confidence motions will probably be filed again, demanding that the BJP prove majority in the house. There is speculation either way: that the NDA has a comfortable majority and will sail through the test; and that they don’t have enough numbers in the Lok Sabha anymore.

But that is all they are: speculations. Unless we witness the actual test happen, we can never be sure which way it goes. By refusing to go for a floor test, the very legitimacy of this government has been put in suspended animation.

The upcoming session is going to be a stormy one. Things can only go downhill from here.

To be continued…