Ordinances for bypassing the Democracy
Parliament is considered as the temple of democracy where the representatives of people sit together to decide the fate of its people by enacting the legislations. Parliamentary process gives legitimacy to the voice of unheard and hence brings in, a comprehensive legislation catering the need of the majority. Our constitution maker in order to prevent the powerless position of the government in cases of emergency provides for the ordinance making power to president and governor.
Constitution in article 123 provides for the ordinance making power in the hand of the executive in the earnest spirit and managing an urgent situation. Though it is subjected to certain conditions:
- It can be promulgated when both the house and either house is not in session.
- Only when president is satisfied that the circumstances exist to take immediate actions.
- It should be co-extensive with the law making power of legislature.
- It should be laid before the parliament when it reassembles.
After the introduction of the bill in the parliament it should be accompanied by the explanation of the urgency in promulgating the ordinance. However there are no safeguards in case the opposition or the speaker could not sense the urgency as explained by the government in the situation.
Indian political history is full of such evidences where the spirit of the article 123 is not kept and the power is incessantly misused by the executives. Passing Bank nationalization ordinance, government of Bihar in 1980’s passing more ordinance than laws, also a record of 50 ordinances in a day also owned by Bihar governor.
The present government since coming to power misused the same by bringing 9 ordinances till now deliberately bypassing the discussion in Rajya Sabha because of low majority. It includes the TRAI (amendment) ordinance, 2014 to controversial land acquisition ordinance, 2015.
Impact of the ordinances
It takes away the faith from the democratic principles while deliberately avoiding the discussion. Also it gives a psychological effect of an autocratic rule without involvement of various stakeholders. It creates a precedence making the exception a norm. It challenges the intent of the government to bring in the legislation through ordinance route deliberately avoiding the parliamentary discussion. In many laws which need elaborate discussion before bringing them in statutes are overlooked e.g. the land acquisition (amendment) ordinance 2015.
DC Wadhwa vs State of Bihar, 1987
In this case Supreme Court of India states the power of ordinance conferred to the president and governor is to deal with an emergency situation. It is to deal with such situation in which taking immediate action by the legislature is not possible. It is to prevent the suffering of national interest because of legislature being helpless to deal with the problem. The court went further and said the repromulgation of the same ordinance is not allowed.
What should be done?
In order to restore the trust of people in the democracy the ordinance route should be avoided as far as possible and used in the right earnest and spirit of the article 123 of the constitution. President of India took the concern of various ordinances and said enacting law without discussion effect the overall decision making process in the country.
