Ordinances: A Shady Way To Subvert Democracy

#TrueStory

Ordinances have been in and out of the news in the past month. Starting with the note-ban ordinance issued towards the end of 2016 and now the Jallikattu ordinance which was passed on Saturday. They have increasingly become a sure-shot way for the government to pass laws temporarily without seeking the approval of Parliament. Remember Land Acquisition?

But that is all about to change, thanks to the Supreme Court.

Here’s a look at why ordinances are a shady way to subvert democracy and how it affects all of us.

Ordinances… what?

When Parliament is not in session, the government cannot pass any laws. It has to wait till all the members of Parliament descend on Delhi to discuss, debate and decide on particular legislations, and vote to enact them. But what if problematic situations arise when Parliament is not in session and the only way to resolve them is by passing a law? The Jallikattu protests in Tamil Nadu, for example, do qualify as an urgent, problematic situation. The only way to resolve this and curb the protests would be to pass a law that allows the festival to resume in all its glory.

This is where our constitution comes to the rescue. Under article 123, there is a provision which allows the President to enact laws during the inter-session period. It’s called an ordinance.

Ordinances are supposed to be issued only when the President is satisfied regarding the immediacy of the circumstances. However, at present and in the recent past, this provision has been exploited by governments without giving a single bother.

Ordinances are temporary by nature, because Article 123 further goes on to say:

If the ordinance is not brought into and passed by both houses of Parliament within six weeks in the form of a bill, the law ceases to exist. Simply put, we have a new temporary law in place when an ordinance is issued. It becomes a permanent fixture only if Parliament approves it. If the Parliament doesn’t do that, the law vanishes into thin air.

But here’s the funny (?) thing: The law is active for that interim period.

This is troublesome because it just means that the government reissues random ordinances multiple times during intersessions. Allow me to put this in perspective by telling you the fascinating story of the Land Acquisition Ordinance.

Your land is my land

On December 31, 2014, the Modi government issued an ordinance called Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014 (LARR). The new law allowed the government to take over any land, without giving a toss about social impact assessment surveys, for purposes like national security, rural infrastructure, affordable housing, industrial corridors and social infrastructure projects. From that day onwards till February 23, 2015 when Parliament reassembled, this was an active law. Which meant both state and central governments were free to go bonkers and acquire land.

After the law was introduced, there was acute opposition to it. Farmer groups protested across the country and demanded the law be withdrawn. Because the National Democratic Alliance has majority in Lok Sabha, the bill was passed after an intense debate on March 10, 2015. But the LARR was stuck in Rajya Sabha. The active Ordinance was about to lapse.

At this point, the number of days LARR had been active was 54.

The government was like, “Have no fear! Article 123 is here!”

While the law was still alive in Rajya Sabha, on April 3, 2015, when the Parliament was not in session, this law was re-promulgated as an ordinance for the second time by simply changing the year in the title from 2014 to 2015. The LARR was active till April 20, 2015 when both houses reassembled after recess. The bill continued to be stuck in Rajya Sabha.

And, of course, it does not end here.

Oh, and LARR? That was active for 72 days by this point.

The budget session ended that year on May 13, 2015, the government re-promulgated the LARR ordinance on May 30, 2015 for the third time. Now this ordinance was not even brought into either houses of Parliament. It remained active during the monsoon session, which commenced on July 21, 2015. As per the Constitution, an ordinance lapses after six weeks if it is not passed. Well, our benevolent government let it lapse with utmost grace.

On August 31, 2015, PM Modi announced that they will bury the LARR ordinance and not re-promulgate it.

Number of days LARR was ACTIVE: 164.

The active bill was sent to a standing committee where it continues to be ‘discussed’. In every session since then, they keep asking for extension to present the report.

Moral of the story: LARR was an active law for a little more than 5 months.

The big question, which nobody really asked, was, what happened during these 164 days? Did governments across the country acquire land under this new law when it was active, which was actually an ordinance?

What’s up Mr President?

Ordinances are not unique to this government. The previous Manmohan Singh-led Government pushed 61 ordinances in its decade-long rule. According to a publication titled Presidential Ordinances 1950-2014, after the Constitution came into force and till December 2014, the President has promulgated 679 ordinances. That’s an average of 10 ordinances annually.

The first ordinance issued was on January 26, 1950, which allowed MPs to hold offices of profit while being members.

The big problem in this whole ordinance business is that it allows the executive to circumvent Parliament and do whatever for a limited period of time. For instance, The Enemy Property (Amendment and Validation) Ordinance 2016 has already been re-promulgated four times! Why? Probably because the Bill is stalled by Rajya Sabha and the government still wants it to be law. But that’s in no way a valid reason to reissue an ordinance. This is probably the first time in our constitutional history that an ordinance has been re-promulgated for a fourth time.

The other big question is, why is the President allowing this?

An ordinance cannot be issued until the President is ‘satisfied’ that the conditions and circumstances require such a law. If he allows the Government to pass laws because the Rajya Sabha will/may stall this law, isn’t he indirectly subverting democracy?

Technically, the constitution says that the government can only ‘recommend’ that a President should pass a certain ordinance. Nowhere does it say that he/she *has to* listen to the Government and act.

Seriously, what’s up Mr. President?

Supreme Court being awesome

The Supreme Court also seems to have noticed that something is off about this ordinance ordeal. Recently, it passed a judgment that “re-promulgation of ordinances is a fraud on the Constitution and a subversion of the democratic legislative processes.” A seven-judge constitutional bench said that re-promulgation of any ordinances in the future will be un-constitutional. They called it a fraud!

This judgment has repercussions on the recently passed Specified Bank Notes (Cessation of Liabilities) Ordinance, 2016 which says that demonetised Rs 500 and 1000 notes will cease to be liabilities of the Reserve Bank of India (RBI) from December 31, 2016 onwards.  Further, these notes will no longer be guaranteed by the central government. It imposes a penalty on citizens for holding more than 10 such notes.

The government will now have to ensure that this law passes in Parliament once the Budget session commences on January 31. If it doesn’t, they cannot reissue this ordinance and the old law will apply, which means the old notes will continue to be guaranteed liabilities of the RBI. This ordinance was issued on December 30, 2016, 14 days after the close of winter session of Parliament. It is still unclear why the Government did not bring this in as a bill during the session if the circumstances were so ‘immediate’ in nature. Why wait for the 50 days of demonetisation to end when the bill could have easily said that the law will be applicable from December 31?

It remains to be seen how the Modi government will play the game once Parliament resumes. If the bill is introduced, there is bound to be a discussion on it. The demonetisation discussion that the country has been waiting for since November 8 might finally (and hopefully will) happen.

In any case, the Supreme Court deserves a humble bow for ending this Ordinance Raj once and for all.

Fun times incoming!

The author can be contacted on Twitter @Memeghnad