The Congress-led United Progressive Alliance (UPA) seems to have adopted the legislative strategy of ordinances to get its agenda through parliament. Latest in the line-up is the national food security ordinance 2013, promulgated on July 5. This ordinance provides a statutory right to foodgrains at a subsidised price to the rural and urban poor. Although there is a similar bill already pending in parliament, the government claimed it had to take the ordinance route because the opposition was not willing to let parliament function. While there is a grain of truth in that, political analysts speculate that the gain anticipated in the 2014 elections through such populist measures is the more likely reason.

Leaving aside the debate over the immediate political calculation behind the ordinance, the larger issue that has received less attention is whether this is an instance of misuse of the power to issue ordinances and the precedent it sets for the Indian polity. This article attempts to outline the scope and nature of ordinance-making power, and examine whether there is a conflict between the intent behind the power and the reality of its usage by the government of the day.

Mechanism for legislative emergencies

While the primary lawmaking authority is the legislature, the constitution provides a mechanism to tide over emergency situations if a law is required to cope with the matter. The president (that is, executive) has the power to promulgate ordinances when parliament is not in session and there are circumstances for which ‘immediate action’ is required.

Although an ordinance is equivalent to a law passed by parliament, it differs in one key respect: an ordinance lapses if it is not passed by parliament within six weeks of its reassembly.

Thus, it is clear that the intent of this power is to enable the executive to take action in an emergency. Case law also bears this out. The supreme court, in the RK Garg vs Union of India (1981) and DC Wadhwa vs State of Bihar (1987) cases stated that the legislative power to issue ordinances is in the nature of an emergency power given to the executive – only “to meet an emergent situation”.

The ordinance power is a legacy of the British Raj. The Government of India Act 1935 empowered the governor general to promulgate ordinances even when the central legislative assembly was functioning. Objections were raised by constituent assembly members when these powers were included in the draft constitution. Pandit HN Kunzru argued that the legislature should be given an opportunity to assess the situation necessitating the ordinance. HV Kamat wanted the name of the chapter on ordinances to be changed from ‘Legislative powers of the President’ to ‘Extraordinary powers of the President’. However, Dr BR Ambedkar assured members that this provision only aimed to allow the executive to deal with emergency situations.

Intent vs reality

In consonance with the intent of the founding fathers, the ordinance power ought to be used only in cases of exigency when parliament is not in session. However, as data shows, this power has not been used sparingly right from 1950 – when the government promulgated 32 ordinances in a single year. Since then, over 600 ordinances have been promulgated to enact or amend laws. For instance, 61 ordinances were notified during the emergency years of 1975 to 1977. Again, when parliament was in a flux, between 1996 and 1998, the government notified 83 ordinances. But 34 ordinances, the highest ever in a year, were issued in 1993 when there was a stable government.

There are also numerous instances when an ordinance was promulgated within a few days of parliament commencing or going into recess. In fact, within the first 20 years after the constitution was adopted, there were 30 such instances. For example, the Kumbh Mela pilgrim tax ordinance was issued 11 days after parliament adjourned on December 23, 1953, whereas the government knew about the mela schedule in advance. The industrial disputes (banking companies) commencement of decision ordinance, 1954, was promulgated three days after parliament session ended.

Two of the latest ordinances, the criminal law (amendment) ordinance and the food security ordinance, are examples of the use of the president’s ordinance power to enforce provisions of bills pending before a house or a committee.

This is not a new phenomenon, but some of these ordinances are instances of obvious misuse of the executive’s legislative power. For instance, the Press (Objectionable Matter) Act 1951 was extended by an ordinance in 1954 even though members had made it clear that the law should not be passed through an ordinance. In 1999, the BJP-led NDA government took the ordinance route to enact controversial laws (which had been passed by one house but not the other) – the Indian patents (amendment) ordinance and the Prasar Bharti ordinance. 

A check against the misuse of ordinance-making powers is that the president can refuse to sign it into law. For example, president Neelam Sanjeeva Reddy refused to sign an ordinance proposed by prime minister Charan Singh on financial help to election candidates.

Besides, various ordinances have lapsed or been defeated on floor of the house. There have also been times when bills replacing ordinances have been referred to the standing committee though the ordinance would lapse such as the electricity laws (amendment) bill, 1997.

Speakers and individual MPs have objected to the frequent use of this power, particularly on dates too close to a session of parliament. Back in 1947, Lok Sabha speaker GV Mavalankar said that it was a “wrong convention for the executive government to promulgate ordinances merely because of shortage of time”. He said the power was to be exercised only when there was an emergency and the legislature could not meet. Other speakers such as GS Dhillon and Balram Jhakar also expressed similar views.

Need for stricter control

It is clear that governments have often used the ordinance power to either enact controversial laws or avoid legislative debate. Although it may not be strictly illegal to do so, since “immediate action” gives a wide enough ambit to the government, the question is whether the intent of this power was adhered to.

The recent food security ordinance is a case in point. First, there is a bill already pending in parliament since 2011. Second, parliamentary discussion on the bill began during the budget session. Third, parliament is slated to reconvene within a few weeks. Considering these circumstances, it is to be seen how the government will justify the test of emergency.

The criminal law (amendment) ordinance was also issued in a similar situation, though the Delhi gangrape case and nationwide protests were cited as its immediate cause.

Ordinance-making power is a necessary evil given its inherently undemocratic nature. Its purpose is to allow the executive to act when urgent steps are required and parliament is not in session. However, using this power not to tackle an emergency situation but to bypass the legislature, or avoid a debate on controversial subjects, is deeply problematic.

That the government has turned to such justification points to blatant disrespect for the constitution’s democratic spirit.

It also points to certain flaws in the system such as inability of the government to reach a consensus with the opposition as well as its own members on key bills, and lack of respect for rules of procedures (circulating a bill well in advance of the date of discussion, giving notice for amendments to be introduced, allowing space for public consultations, etc). 

Given the almost complete breakdown in communication between the government and the opposition, this may be the right time to reflect on steps that can be taken to ensure that parliament is not disrupted. Simultaneously, more stringent requirements may be put in place to justify the test of “immediate action” for an ordinance to be issued.