21 Jan The Ordinance Raj
The Ordinance Raj- Today Current Affairs
The issue of the misuse of ordinances has once again come in the public eye in the specific context of the three farm laws. These laws, affecting the lives and livelihoods of more than half of India’s people, were passed by way of ordinance, and now, in the face of strong protests, they have been repealed. Though parliamentary approvals were sought and received for these laws eventually, the whole episode has revealed something disturbing about the state of India’s democracy.
The ordinance-making power in the Constitution is not a necessary feature of the Westminster form of parliamentary democracy that India has adopted. It is a relic of the Government of India Act, 1935 that was nonetheless retained by the Constituent Assembly. While sufficient safeguards were introduced into the Constitution to try and ensure that such ordinances do not become the default mode of lawmaking, the experience of the Indian republic since 1950 has suggested that even these measures have not had the intended effect on the political executive.
Ordinances have been and continue to be issued on matters all and sundry and repromulgated even when they fail to receive parliamentary approval. If one were to see the average number of ordinances in a year, the pattern is one of steady increase since the 1990s and an even sharper increase in the last decade. Issuing such ordinances is not a common practice in the Westminster form of parliamentary democracies. Only two other countries with such a form of government have provisions related to ordinance making—Pakistan and Bangladesh. The common factor between the three countries is obvious—the Government of India Act, 1935. The Hindu Analysis.
The misuse of ordinances is not only at the union government level but also at the state level. The repeated repromulgation of ordinances and their excessive use was first seen in the states and has only spread to the union government level. As far back as 1986, in Dr D C Wadhwa and Ors v State of Bihar and Ors, the Supreme Court quashed ordinances that had been repromulgated by the governor of Bihar without placing it before the state legislative assembly. Even as recently as in 2017, in Krishna Kumar Singh and Anr v State of Bihar and Ors, the Supreme Court has attempted to restrain the ordinance-making power of the executive, yet to no avail as the number of ordinances continue to rise every year. Despite the strong words of the Court, these judgments have had little impact on the executive’s impulse to overuse ordinances.
No justification has been offered at any point as to why any of these ordinances have been issued—either passing or repealing the farm laws. There is nothing in the ordinances that even hints at a basis for the emergent situation, which it is trying to address. Even as the Supreme Court, in Krishna Kumar Singh, has repeated that it is necessary to show why it must take immediate action, the political executive has in no way attempted to offer any reasons for the same.
To properly understand the motivations and thinking behind the overuse of ordinances, it is important to see this phenomenon as part of the anti-democratic “toolkit” that has been developed over the years in India by political parties, especially the ruling Bharatiya Janata Party. The use of money bills for non-finance-related laws, the mass suspension of the members of the opposition, the appointment of partisan speakers of legislatures, and the use of money power to incite defections among legislators, among other practices, have gained currency across the political spectrum in the last few decades. The Hindu Analysis.
Although reasonably free and fair elections continue to be held at regular intervals at the union and state levels, the true health of India’s democracy can be gauged by what happens in between such elections. In a democratic system, popular elections only dictate who may govern in accordance with the norms and practices of the Constitution. They cannot be and can never be, considered to be carte blanche for showing contempt towards democratic practices and institutions that are necessary to create and maintain a healthy democracy. The Hindu Analysis.
When B R Ambedkar delivered his “grammar of anarchy” speech in the Constituent Assembly in 1949, he had in mind methods of protest, such as civil disobedience, non-cooperation, and satyagraha and how they might be detrimental to a constitutional democracy. When constitutional democracy is being subverted from within, its forms being made hollow by those who swear an oath to protect the Constitution, it is perhaps not surprising that people are being forced to resort to such methods that might cause inconvenience to the people as well as the government. Whether it was the Shaheen Bagh sit-ins or the farmers’ protest, they exposed the widespread loss of faith in democratic institutions. We hope this serves as a wake-up call to the political class to take the forms and practices of constitutionalism seriously.