Time to ponder over Ordinance route?

Pankaj Sharma/ Zee Research Group

The Ordinance route adopted by the United Progressive Alliance (UPA) government to push forward the Food Security Bill (FSB) just ahead of the Monsoon Session of Parliament raises an inevitable question – has Ordinance become a tool to discredit and undermine Parliament’s legislative authority? What’s intriguing, the trend of relying on Ordinance to push forward contentious bills and laws applies to all regimes – left, right or centre. The trend peaks up, in particular, during election years.

A Zee Research Group (ZRG) analysis reveals that so far a total of 622 Ordinances have been promulgated. In the last six decades, on an average 10 Ordinances have been issued per year. Interestingly, the rate of Ordinance promulgation goes above the average in a Lok Sabha election year.

For instance, both in 1976 and 1977 (Lok Sabha election year) 16 Ordinances were promulgated. Similarly, both in 1979 and 1980 (election year) 10 Ordinances were promulgated. Continuing the similar trend a year before the Lok Sabha elections in 1983, 11 Ordinances were promulgated by the President. Moreover, in 1984 which was an election year, 15 Ordinances were promulgated.

However, in 1988 and 1989 (election year) seven and two Ordinances were issued respectively. In 1990 and 1991 (election year) the number went up to 10 and nine respectively. Moreover, in 1995 and 1996 (election year) 15 and 32 Ordinances were issued respectively.

Both in 1998 and 1999 general elections took place in the country. While 20 Ordinances were promulgated in 1998, in 1999 10 Ordinances were issued. Each in 2003 and 2004 (election year) eight Ordinances were promulgated. More so, in 2008 and 2009 (election year) eight and nine Ordinances were issued respectively.

While opposition parties are questioning UPA’s move to take Ordinance route only 2-3 weeks before the start of Monsoon Session, experts think differently. Constitutional expert and former secretary general of the Lok Sabha, Subhash C Kashyap explains, “Constitution doesn’t bar the government of the day from exercising Ordinance route so it would be wrong to criticize UPA’s move. It ultimately boils down to both Houses to either accept or reject the Bill.”

It’s not the first time that the use of Ordinance has spawned questions in political circles. Kashyap recalls, “During 50s, Lok Sabha speaker GV Mavalankar complained to Prime Minister Jawaharlal Nehru calling promulgation of Ordinances as inherently undemocratic.”

Mavalankar in his letter to Nehru stated, “The issue of an Ordinance is undemocratic and cannot be justified except in cases of extreme urgency or emergency.”

Data over the last 60 years indicates that the highest 34 Ordinances were issued in 1993 followed by 32 in 1996. In the 15th Lok Sabha (2009-2013), the trend somewhat declined with just 16 Ordinances being issued every year.

Between January 1, 2008 and December 31, 2011 a total of 24 Ordinances were issued in which six bills lapsed as these could not be replaced by the Act within the stipulated period. Bills that lapsed during the period include – The Indian Institute of Information Technology, Design and Manufacturing, Kancheepuram Ordinance, 2011, The Enemy Property (Amendment and Validation) Ordinance, 2010, The Meghalaya Appropriation (Vote on Account) Ordinance, 2009, The Meghalaya Appropriation Ordinance, 2009, The Forward Contracts (Regulation) Amendment Ordinance, 2008 and The Employees’ State Insurance (Amendment) Ordinance, 2008.

According to Article 123 of the Indian Constitution, 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/her to take immediate action, the President may promulgate an Ordinance as the circumstances appear to him/her to require. Such Ordinances shall have the same force and effect as an Act of Parliament but they should not contain any provision which the Parliament would not under the Constitution, be competent to enact.

Once an Ordinance is framed, it is to be laid before Parliament within six weeks of its first sitting. Parliament is empowered to either choose to pass the Ordinance as law or let it lapse.

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