Ordinances

Tyranny of the majority

Print edition : January 23, 2015

A scene in the Lok Sabha on December 22. The Modi government has bypassed Parliament and promulgated ordinances. Photo: PTI

The Narendra Modi government resorts to promulgation of a series of ordinances unmindful of its constitutional implications.

G.V. MAVALANKAR, the first Speaker of the Lok Sabha, told Prime Minister Jawaharlal Nehru in 1954 that if ordinances were not limited by convention only to extreme and very urgent cases, the government might go on issuing ordinances in future, giving the Lok Sabha no option but to rubber-stamp its policy decisions. Nehru and successive Prime Ministers ignored Mavalankar’s prescient warning and allowed ordinances to become a parallel method of enacting legislation without Parliament’s involvement.

The spate of ordinances issued by the Narendra Modi government at the Centre since coming to power in May 2014 has raised the question whether it will surpass all the previous records in this regard.

As the winter session of Parliament concluded on December 23, the government, through President Pranab Mukherjee, promulgated on December 26 two ordinances, The Insurance Laws (Amendment) Ordinance, 2014, and The Coal Mines (Special Provisions) Second Ordinance, 2014. The resort to these ordinances, close on the heels of the conclusion of the month-long session, raised eyebrows. While promulgating an ordinance, the President has to declare that Parliament is not in session and that he is satisfied that the circumstances exist which render it necessary for him to take immediate action. Neither the government nor the President cared to explain to the public if circumstances indeed forced the President to take immediate action or why the government did not secure the passage of the Bills in both Houses of Parliament during the month-long session.

It is not as if Parliament did not transact any business during the winter session because of the ruckus raised by the opposition in protest against the communalisation of the social fabric by the ruling party and its Sangh Parivar allies. As many as 12 Bills were introduced and passed during this session. If they were so urgent, the government could well have prioritised the two Bills dealing with the subject matter of these two ordinances.

The Insurance Laws (Amendment) Ordinance was promulgated because, as Finance Minister Arun Jaitley claimed, the Bill was pending “for a long time”. There are at least five government Bills pending from earlier sessions of Parliament in the Lok Sabha, and as many as 49 Bills are pending in the Rajya Sabha. If “long pendency” of these Bills is the only consideration for promulgating the ordinances, the Modi government could well take the credit for reducing Parliament to a rubber stamp, as forewarned by Mavalankar.

The pending Bills are under various stages of consideration, many of them having been the subject matter of reports by Standing Committees. The Insurance Laws (Amendment) Bill, 2008, was the subject of the Standing Committee Report dated December 13, 2011. The Bill was further referred to the Select Committee of the Rajya Sabha. This committee submitted its report, along with the Insurance Laws (Amendment) Bill, 2014, incorporating the amendments proposed on December 10, 2014. The government’s only justification for the ordinance was that this Bill “could not be taken up for consideration and passing” in the Rajya Sabha during the winter session. The ordinance hikes the foreign direct investment (FDI) cap in the insurance sector from 26 to 49 per cent.

The Coal Mines Ordinance was repromulgated. It originally was promulgated on October 21, 2014. Under Article 123(2)(a) of the Constitution, an ordinance shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period, resolutions disapproving it are passed by both Houses.

The Coal Mines (Special Provisions) Bill, 2014, was passed by the Lok Sabha during the winter session and is pending in the Rajya Sabha. The government justified the repromulgation of the ordinance saying it has initiated action to frame rules for the allocation of coal mines, and therefore, it was considered necessary to give continuity to the provisions of the first ordinance. Also, the government said it resorted to the “immediate action” to allocate coal mines to successful bidders and allottees keeping in view the energy security of the country and to minimise any impact on core sectors such as steel, cement and power utilities.

The Supreme Court had on August 25, 2014, read with its order dated September 24, 2014, cancelled the allocation of coal blocks by the previous government and issued directions with regard to such coal blocks. The government claimed that it had to take “immediate action” to implement the Supreme Court’s order. Although the Supreme Court, in one of its landmark judgments, has termed repeated repromulgation of ordinances as a fraud on the Constitution, the government’s justification of its action citing the court’s order appears to be a clever ploy to hoodwink the judiciary as well as the public.

Opposition parties protested against the promulgation of the two ordinances. Sitaram Yechury, Leader of the CPI(M) Group in the Rajya Sabha, wrote a letter to the President requesting him not to sanction any ordinance that bypassed parliamentary procedures. He pointed out that the Lok Sabha had taken up 16 Bills and passed in an unprecedented manner 13 Bills without referring to scrutiny by the Parliamentary Standing Committees. “To use a phrase that emerged during the European Enlightenment establishing modern parliamentary democracy, this practice is the brutal exercise of the ‘tyranny of democracy’,” he wrote to the President. “In the Rajya Sabha, Select Committees were constituted to examine three such Bills passed by the Lok Sabha—an unprecedented number in any one session,” he said.

Yechury drew the President’s attention to Lok Sabha Rule 75(2a) which says that if the member in charge moves that the Bill be taken up for consideration, any member may move an amendment suggesting that that the Bill be referred to a Select Committee of the House, or a Joint Committee of the Houses with the concurrence of the Council, or be circulated for the purpose of eliciting opinion thereon by a date to be specified in the motion. He said it was regretful that such rules were no longer being respected through the exercise of “brute majority”. Bills were being adopted even amidst din, he said. Yechury sought the President’s intervention to nip in the bud such tendencies, which may result in resorting to an authoritarian manner of parliamentary functioning. This would be completely antithetical to the letter and spirit of constitutionally established parliamentary democracy, he told the President.

Yechury’s appeal, however, failed to persuade Mukherjee and he gave his assent to the two ordinances. This emboldened the Modi government to adopt the ordinance route to legislate other Bills, which it termed as “urgent”.

Colourable exercise of power

On December 29, the Union Cabinet approved one more ordinance. It sought to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The amendment relaxed the requirements of consent and social impact assessment survey for projects in five areas—national security and defence, rural infrastructure and electrification, affordable housing for the poor, development of industrial corridors and infrastructure, and social infrastructure including public-private partnerships (PPPs) in which the ownership rests with the government. The measure was officially aimed at mitigating “procedural difficulties” in implementing the 2013 Act and thereby speeding up developmental and security-related projects without compromising on the benefits/compensation to be given to farmers. Curiously, there was no explanation from the government as to why it did not think of introducing an amendment Bill in the just-concluded Parliament session for the purpose or waiting for the next session. The urgency was inexplicable. The entire opposition excoriated this part of the ordinance as it signalled a return to the exploitative colonial land acquisition Act of 1894 which the 2013 Act aimed to replace by ensuring consent of the dispossessed in any forcible land acquisition.

The ordinance also amends Section 105 of the Act to include 13 statutes previously exempted from the rigours of payment of compensation if land was acquired under them. This objective could have been achieved through a simple notification. The government, according to reports in the media, also approved of two more ordinances—one to amend the Citizenship Act, 1955, and another to amend the Arbitration and Conciliation Act, 1996. The amendment of the Citizenship Act aims to benefit People of Indian Origin and give them benefits such as life-long visa and exemption from appearing before the police station on every visit to India. Again, the reason behind the urgency was not clear.

The Modi government has some compulsions to take the ordinance route. The BJP has only 45 MPs in the Rajya Sabha, which has an effective strength of 243. Since it is not confident of ensuring the smooth passage of controversial pieces of legislation in the Rajya Sabha, it apparently believes that it can resort to ordinances for the time being, even though ordinances have an early expiry date and repeated promulgations of the same ordinances may invite the censure of the Supreme Court. Also, decisions taken by the government under the ordinances are protected and they survive even if the ordinances lapse or are withdrawn or disapproved by Parliament resolutions.

In the event of ordinances not becoming Acts of Parliament because of the BJP’s lack of majority in the Rajya Sabha, the government was planning to call a joint session of both Houses of Parliament to obtain the numerical support necessary to have the Bills passed. However, observers feel it is too early to say whether the government will succeed in fulfilling the conditions necessary for calling joint sessions of Parliament. Joint sessions of Parliament to enact laws have taken place only three times in the past, and they are meant to pass only non-money Bills. Joint sessions of Parliament can be called only if one of the three conditions are met: one, if the Bill is rejected by either House, and two, if the Houses have finally disagreed as to the amendments to be made in the Bill or if more than six months elapse from the date of the reception of the Bill by either House without the Bill being passed by it. These constitutional stipulations have led observers to wonder whether the government will face a numerical defeat in the Rajya Sabha or opt for repeated repromulgation of ordinances until the expiry of six months from the date of the Rajya Sabha receiving the Bills. Either way, it will be a pyrrhic victory for the Modi government.

Rajasthan’s sample

There is something deeply problematic with a ruling party with an absolute majority having to resort to ordinances. If the Modi government perhaps has some justification to issue ordinances because of its minority status in the Rajya Sabha, the Bharatiya Janata Party government in Rajasthan has none. Recently, the Rajasthan government promulgated an ordinance mandating minimum educational qualifications for those contesting local bodies’ elections: candidates contesting zilla parishad or panchayat samiti elections ought to have passed class X examination and those contesting for the sarpanch post should have passed class VIII. (Story on page 113.)

Many social activists including Aruna Roy, and two former Chief Election Commissioners, J.M. Lyngdoh and S.Y. Quraishi, have written to Chief Minister Vasundhara Raje describing the ordinance as “unconstitutional, unjust and discriminatory”. The resort to ordinances by governments with brute majorities only shows that they want to avoid democratic decision-making process in the legislatures initially. Once the ordinances become a fait accompli, it is easier for the governments to replace them with legislation before they lapse without any serious discussion in the legislatures as the ordinances carry an unstated compulsion to do so to ensure “continuity”.

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