Political Diary
New Delhi, 23 May 2023
BJP Ordinance Raj
PEOPLE’S WILL PARAMOUNT
By Poonam I Kaushish
The only real mistake is the one from which we learn
nothing. A lexicon which fits the latest BJP-AAP squabble over the Centre
promulgating an ordinance Government of National Capital Territory of Delhi
(Amendment) Ordinance, 2023 Friday, in a bid to nullify Supreme Court’s
Constitution bench ruling that handed over reins of “services”/bureaucracy to
Delhi Government by underscoring importance of the people’s mandate in a
democracy expressed through an elected Government. AAP has moved court for a
review of the verdict thereby setting the stage for renewed confrontation.
Justifies BJP, “Delhi is a Union territory with special
status where Center plays a crucial role. The AAP Government is trying to
shield itself from ongoing corruption cases by transferring officials. We are
trying to save Delhi’s administrative system. It’s a trivial non-issue being
blown out of proportion”.
Predictably, post Congress victory in Karnataka, the
Ordinance has given another leg-up for Opposition unity. Said a senior Congress
leader, “It is a clear sign of a poor, bad and graceless loser and a way to
subvert the democratic process. By promulgating it at midnight of the day
Supreme Court went on vacation, BJP has again eroded democratic norms and reduced
Parliament to a rubber stamp. To what extent Constitutional principles can be
diluted by the Ordinance and whether Parliament as a whole will at all approve
this is another aspect we will examine. Can an Ordinance simply reverse the
democratic process?”
Notably, many arguments are being bandied to justify the
decision: That ordinances are necessary when the Executive feels a judgment
overrides a fundamental priority. That many Governments have used them. That
many countries use special arrangements in governance of national Capitals.
That the Court itself noted Delhi Government’s powers are subject to Parliament’s
laws and hence Centre is within its rights to enact a new governing body.
However, there is no gainsaying the Constitution has a few
anti-democratic instruments embedded in it, of which the Ordinance-making power
is one such that remains in India’s statute book though it has grown out of
fashion in most other mature democracies. Though supposed to be used sparingly
and in cases where due to pressing urgency, the superior alternative of a
well-deliberated law where Opposition and society, too, had their say isn’t
available.
The Constitution allows the Government
to use the ordinance route when Parliament is not in session and an emergency situation
requires the Government has to respond immediately by making changes to a piece
of legislation or bring in fresh legislation. Once the Union Cabinet clears it
and President gives his assent, the ordinance becomes law.
However, the Government should table
the Ordinance before Parliament within the first six weeks of its sitting. The
ordinance should be brought out in the form of a bill, where the Parliament
after due deliberations can choose to approve it or reject it completely or
pass it with any modifications. For any reason, if this due process is not
followed, the ordinance lapses after the stipulated time frame. Alternatively,
the President can withdraw the ordinance. It is also compulsory
for a session of Parliament to be held within six months.
Undeniably, while virtually every
Government has used the ordinance route to make laws, it has become
controversial under the Modi Government over the way it has been used. Remember,
the Centre’s three farm laws which met with widespread protests were initially
brought through the ordinance route in June 2020. All three were replaced by
laws in Parliament during its monsoon session that year. But a year later due
to farmers persistent year-long protest the laws were repealed.
According to PRS Legislative
Research and Lok Sabha data the UPA Government promulgated 61 ordinances
between May 2004-2014. But the Modi-led NDA has passed over 76 bills via ordinance since its came to power in 2014. Surpassing
UPA’s 10 years rule, suggesting the Government’s
preference for quicker Executive route to enact laws and tearing hurry to push legislative changes without Parliament’s
consultation and approval.
Pertinently, over 679 ordinances have
been issued from 1950-2014 that averages to 11 per year or one ordinance a
month. Of these 456 were issued in 50 years by 6 Congress Prime Ministers. Nehru
cleared 70 ordinances between 1952-1964, daughter Indira Gandhi issued 77
during 1971-77 (roughly three every two months), Rajiv signed 35 in 5 years. All
three were running majority Governments in Parliament. Narasimha Rao’s minority
Government passed 77 ordinances in its five-year term. Yet the Congress attacks
Modi Sarkar.
Interestingly, the Left-backed UF Government
supported by Congress from outside, passed only 61 Bills during its 1996-98
term under two PMs, Deve Gowda and Gujral, but issued a record 77 ordinances at
a strike rate of more than three per month!
The Vajpayee-led NDA Government issued
58 ordinances between 1998-2004, at a strike rate of almost 9 per year.
Manmohan Singh’s UPA I Government issued 36 ordinances and UPA II issued 25.
Which means UPA took recourse to ordinances 6 times a year in its
10-year term.
Not many are
aware, during the Constituent Assembly debates, serious apprehension were
expressed about resorting to ordinances as a means to enact a law. KT Shah is
on record to say, “promulgating an ordinance is a negation of the rule of law”.
His concern was that even when the “Government issues an ordinance to rise up
to ‘extraordinary circumstances’, we must not overlook the fact that it was
passed without debates and discussion.”
The Supreme Court in the Krishna Kumar (2017)
case held that “re-promulgation of ordinances is constitutionally
impermissible since it represents an effort to overreach the legislative body
which is a primary source of law-making authority in a Parliamentary
democracy”.
True, the NDA Government often cites people’s mandate and betterment
to underline the legitimacy of their actions and policies. By the same token
the AAP’s Delhi Government too represents people’s will. However, Delhi’s case
is a talismanic test of checks and balances in the face of an overweening
Centre, Executive and Legislature. Even as Parliament has the power to enact
laws democratic federalism too is paramount.
What next? Clearly a long and hard battle lies ahead for
bringing a change in the political system and the present political ethos over
ordinances. It is not only about BJP vs
AAP or X,Y,Z. Routine assaults on democratic sensibility are unacceptable. As political
morality and accountability are supreme for good governance and stability.
For even as one builds a big machinery of political power
which brooks no checks and balances, one needs to remember they won’t always be
there to run it. Consequently, there is no place for lies and deceit in a
genuine democracy. People don’t deserve squabbles. ----- INFA
(Copyright, India News & Feature
Alliance)
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