Key legislative changes have been made this year, with a tool that was supposed to be used only sparingly, and at times when ‘immediate action’ is needed.
In the same week that the cabinet decided to withdraw a controversial ordinance designed to benefit convicted MPs, another ordinance was quietly pushed through. Far less controversial than the now infamous ordinance attacked by Rahul Gandhi, this one was about redrawing electoral constituencies to reflect legal shifts in the definition of scheduled castes (SCs) and scheduled tribes (STs), as well as changes in the population of SCs and STs in the last decade. It was introduced following a Supreme Court order in 2011, asking the government to make the relevant changes.
What's interesting about this ordinance is that this was the third time it was being introduced (or 'promulgated') this year. Under the Constitution any ordinance lapses automatically six weeks after parliament meets, and if MPs don't vote to pass the required changes. Effectively the government, unable to get those changes passed in parliament, was rolling over the ordinance each time it lapsed.
It was thus able to make the legal changes it wanted, without having to rely on parliament. This is not the only ordinance which has been rolled over this year. A law giving the securities regulator Sebi greater powers to act against violators has been promulgated twice. As has a law making changes in the Indian Medical Council, the apex regulator of medical education in India.
Indeed, the UPA government has issued 11 ordinances so far this year, the highest since 2001. Key legislative changes have been made this year, with a tool that was supposed to be used only sparingly, and at times when 'immediate action' (the specific term used by the Constitution) is needed.
Former cabinet secretary TSR Subramanian says: "An ordinance per se is a necessary tool in case of an emergency situation. The problem lies with its misuse." Even serving law officers of the government seemed uncomfortable with the ordinance shielding convicted MPs that the UPA eventually withdrew — the Union cabinet had cleared it in the last week of September, two and a half months after the Supreme Court had ruled that an MP or MLA should be disqualified if convicted by a court for a criminal offence and sentenced to a minimum two-year jail term.
Solicitor general of India Mohan Parasaran says that there were problems from day one. "The problem with the ordinance was that it sought to overturn a Supreme Court judgement. We are mere law officers. We advise the government on the constitutionality of any law. We can't go beyond it." It's evident from this statement that a section of top law officers wasn't exactly in favour of the ordinance.
In fact, on the day the cabinet revoked its earlier decision and withdrew both the ordinance and the bill, Parasaran's father K Parasaran, who had served as attorney general of India under Indira Gandhi and Rajiv Gandhi, wrote in a newspaper column that "the Bill, if enacted as law, and/or the Ordinance, will also be violative of Article 14 of the Constitution as being arbitrary, discriminatory and irrational". Parasaran senior is a nominated MP in Rajya Sabha, and is known to be close to the Gandhi family.
Used Ordinarily
Originally, the power to issue ordinances was part of the 1935 Act under the British Raj. The move to make it part of the Indian Constitution was supported by BR Ambedkar who made it clear that he saw the power as one that should be used only in case of an emergency: "The emergency must be dealt with, and it seems to me that the only solution is to confer upon the President the power to promulgate the law which will enable the executive to deal with that particular situation...because the legislature is not in session."
What's interesting about this ordinance is that this was the third time it was being introduced (or 'promulgated') this year. Under the Constitution any ordinance lapses automatically six weeks after parliament meets, and if MPs don't vote to pass the required changes. Effectively the government, unable to get those changes passed in parliament, was rolling over the ordinance each time it lapsed.
It was thus able to make the legal changes it wanted, without having to rely on parliament. This is not the only ordinance which has been rolled over this year. A law giving the securities regulator Sebi greater powers to act against violators has been promulgated twice. As has a law making changes in the Indian Medical Council, the apex regulator of medical education in India.
Indeed, the UPA government has issued 11 ordinances so far this year, the highest since 2001. Key legislative changes have been made this year, with a tool that was supposed to be used only sparingly, and at times when 'immediate action' (the specific term used by the Constitution) is needed.
Former cabinet secretary TSR Subramanian says: "An ordinance per se is a necessary tool in case of an emergency situation. The problem lies with its misuse." Even serving law officers of the government seemed uncomfortable with the ordinance shielding convicted MPs that the UPA eventually withdrew — the Union cabinet had cleared it in the last week of September, two and a half months after the Supreme Court had ruled that an MP or MLA should be disqualified if convicted by a court for a criminal offence and sentenced to a minimum two-year jail term.
Solicitor general of India Mohan Parasaran says that there were problems from day one. "The problem with the ordinance was that it sought to overturn a Supreme Court judgement. We are mere law officers. We advise the government on the constitutionality of any law. We can't go beyond it." It's evident from this statement that a section of top law officers wasn't exactly in favour of the ordinance.
In fact, on the day the cabinet revoked its earlier decision and withdrew both the ordinance and the bill, Parasaran's father K Parasaran, who had served as attorney general of India under Indira Gandhi and Rajiv Gandhi, wrote in a newspaper column that "the Bill, if enacted as law, and/or the Ordinance, will also be violative of Article 14 of the Constitution as being arbitrary, discriminatory and irrational". Parasaran senior is a nominated MP in Rajya Sabha, and is known to be close to the Gandhi family.
Used Ordinarily
Originally, the power to issue ordinances was part of the 1935 Act under the British Raj. The move to make it part of the Indian Constitution was supported by BR Ambedkar who made it clear that he saw the power as one that should be used only in case of an emergency: "The emergency must be dealt with, and it seems to me that the only solution is to confer upon the President the power to promulgate the law which will enable the executive to deal with that particular situation...because the legislature is not in session."
Since then, however, successive governments have sought to stretch the definition of those terms 'immediate action' and 'emergency'. The Bihar government, for instance, was at the centre of a key constitutional case in 1987, where the Supreme Court found that the state government was routinely issuing ordinances, and then repromulgating them again and again, thus effectively bypassing the state legislature.
Subhash Kashyap, a constitutional expert and former secretary general of the Lok Sabha, points to correspondence between the first speaker of the Lok Sabha GV Mavalankar and prime minister Jawaharlal Nehru on the issue of ordinances. "He asked the prime minister not to resort to promulgation of ordinances so close to the start and end of a parliamentary session," says Kashyap. "There is little doubt that ordinances have been misused in the past."
"The misuse of ordinances today is like the misuse of Article 356 in the past," says Subramanian, referring to the move by successive central governments in the past to depose state governments. He recollects a 14-hour-long cabinet meeting in 1997 during IK Gujral's tenure as PM, mainly to frame the then UP government under Kalyan Singh. But then President KR Narayanan returned the cabinet's recommendation of imposing President's rule in UP under Article 356. While exercising his discretion, Narayanan referred to the Supreme Court judgement of 1994 on SR Bommai vs Union of India.
Whose Emergency?
A key use of the ordinance-making power has been to enable the government to pass legislation which is currently pending in parliament but has not yet been passed either due to constant disruption, as has been the case this year, or simply because the logistics didn't allow it. In 2001 the last time ordinances were used by the central government so extensively before 2013, the then-NDA government issued, among others, an ordinance declaring the Indian Council of World Affairs (ICWA, a Delhibased think tank governed by its own Act of parliament) an institution of national importance.
This ordinance too, like the others was issued, then lapsed, then re-issued again, with the main reason for the urgency being that the bill to replace the ordinance was still pending in parliament. The delay by parliament in passing the ICWA bill may well have created an emergency for the ICWA but it's not clear that this was a national emergency, which created the need for 'immediate action' by the government of India.
The ordinance route is now an option that is frequently on the table when existing legal changes are not being made. In the early 2000s, the proposal for a national-level Special Economic Zones Act was first mooted under the NDA government. Due to various delays the bill never reached parliament and bureaucrats, in December 2003 (months before India was heading to elections), suggested that an SEZ ordinance be moved instead.
The urgency arose from the fact that a number of private sector SEZ projects such as ones in Navi Mumbai, Indore, Dahej and Mundra were being implemented under state-level SEZ laws. However, funders and bankers were uncomfortable with such projects without the cover provided by a national SEZ Act. To enable such projects, which were already underway, to achieve financial closure and quickly, an ordinance was sought to be moved. Ultimately, even this did not go through, and the SEZ Act was passed by parliament under UPA-1.
Even then, special dispensation was sought by then commerce minister Kamal Nath from the Lok Sabha speaker to quickly pass the bill, rather than refer it to a standing committee as would have been the normal process. Eventually, the bill was passed in two days, with the support of the Left parties. Again, the need for financial closure could well have been an emergency for SEZ developers but it was unclear whether this was the kind of national emergency that the Constitution's framers had in mind.
Other key pieces of economic legislation pushed through by ordinance have included the Telecom Regulatory Authority of India (TRAI) ordinance, which set up the telecom regulator, and the securitisation ordinance, giving banks greater powers to seize assets of defaulters (aimed at resolving a problem which had dogged bankers for decades). The need to attract investment and offer confidence to foreign investors was a key reason cited for setting up TRAI through the ordinance route.
Indeed the mid-90s, with their unstable coalition governments, were a particularly fruitful time for ordinances. More ordinances were issued during those years than at any other time in independent India, including the emergency.
Subhash Kashyap, a constitutional expert and former secretary general of the Lok Sabha, points to correspondence between the first speaker of the Lok Sabha GV Mavalankar and prime minister Jawaharlal Nehru on the issue of ordinances. "He asked the prime minister not to resort to promulgation of ordinances so close to the start and end of a parliamentary session," says Kashyap. "There is little doubt that ordinances have been misused in the past."
"The misuse of ordinances today is like the misuse of Article 356 in the past," says Subramanian, referring to the move by successive central governments in the past to depose state governments. He recollects a 14-hour-long cabinet meeting in 1997 during IK Gujral's tenure as PM, mainly to frame the then UP government under Kalyan Singh. But then President KR Narayanan returned the cabinet's recommendation of imposing President's rule in UP under Article 356. While exercising his discretion, Narayanan referred to the Supreme Court judgement of 1994 on SR Bommai vs Union of India.
Whose Emergency?
A key use of the ordinance-making power has been to enable the government to pass legislation which is currently pending in parliament but has not yet been passed either due to constant disruption, as has been the case this year, or simply because the logistics didn't allow it. In 2001 the last time ordinances were used by the central government so extensively before 2013, the then-NDA government issued, among others, an ordinance declaring the Indian Council of World Affairs (ICWA, a Delhibased think tank governed by its own Act of parliament) an institution of national importance.
This ordinance too, like the others was issued, then lapsed, then re-issued again, with the main reason for the urgency being that the bill to replace the ordinance was still pending in parliament. The delay by parliament in passing the ICWA bill may well have created an emergency for the ICWA but it's not clear that this was a national emergency, which created the need for 'immediate action' by the government of India.
The ordinance route is now an option that is frequently on the table when existing legal changes are not being made. In the early 2000s, the proposal for a national-level Special Economic Zones Act was first mooted under the NDA government. Due to various delays the bill never reached parliament and bureaucrats, in December 2003 (months before India was heading to elections), suggested that an SEZ ordinance be moved instead.
The urgency arose from the fact that a number of private sector SEZ projects such as ones in Navi Mumbai, Indore, Dahej and Mundra were being implemented under state-level SEZ laws. However, funders and bankers were uncomfortable with such projects without the cover provided by a national SEZ Act. To enable such projects, which were already underway, to achieve financial closure and quickly, an ordinance was sought to be moved. Ultimately, even this did not go through, and the SEZ Act was passed by parliament under UPA-1.
Even then, special dispensation was sought by then commerce minister Kamal Nath from the Lok Sabha speaker to quickly pass the bill, rather than refer it to a standing committee as would have been the normal process. Eventually, the bill was passed in two days, with the support of the Left parties. Again, the need for financial closure could well have been an emergency for SEZ developers but it was unclear whether this was the kind of national emergency that the Constitution's framers had in mind.
Other key pieces of economic legislation pushed through by ordinance have included the Telecom Regulatory Authority of India (TRAI) ordinance, which set up the telecom regulator, and the securitisation ordinance, giving banks greater powers to seize assets of defaulters (aimed at resolving a problem which had dogged bankers for decades). The need to attract investment and offer confidence to foreign investors was a key reason cited for setting up TRAI through the ordinance route.
Indeed the mid-90s, with their unstable coalition governments, were a particularly fruitful time for ordinances. More ordinances were issued during those years than at any other time in independent India, including the emergency.
Even in seemingly more clear-cut cases, it's not clear whether an ordinance would have been needed had the government moved more quickly. In the case of the ordinance to rejig electoral constituencies issued last week, for instance, an MP on the parliamentary committee tasked with studying the bill to replace the ordinance wrote a note of dissent to the final committee report.
Sukhendu Sekhar Roy, a Trinamool Congress member nominated to the Rajya Sabha pointed out that while the Supreme Court issued its judgement in 2011, the government only promulgated the ordinance (for the first time) in January 2013. "In between the period there had been a series of parliament sessions and the government did not initiate any action for about two years..." he pointed out (his dissent note differed with the committee over who should have jurisdiction over redrawing the constituencies). Will we see more ordinances this year? As the country heads to elections and with next few parliamentary sessions before the elections likely to be short-lived, this could well be the case.
|
0 comments:
Post a Comment