The Narendra Modi government proposes a law and the Opposition opposes it. But the Modi government disposes off all opposition — at least before the electoral code of conduct came into force — by using the ordinance route to bypass Parliament. The judiciary and the media have already been reigned in because an absolute majority ensures absolute law-making power in the name of Ram rajya.
Whether these ordinances were promulgated for the benefit of the people or industrialists who fed the BJP coffers will never be known unless the newly-elected government orders a probe. But whether that will ever be done is chimerical and nebulous.
By using the ordinance route, Parliament which is the sole law-making organ of a democracy was bypassed and persuasion, reflection and exchange of views became redundant and nugatory. The Opposition’s views were ignored even when the ruling BJP did not disagree with them to ensure the law passed through the ordinance route bore the ideology of the BJP.
For those who do not know, Parliament includes the Opposition as well as the ruling BJP. Ordinances are promulgated only in dire emergencies like outbreak of riots or war and must be ratified by Parliament within six weeks of it sitting or the ordinance will die a natural death. But there was nothing remotely urgent about the laws passed through the ordinance route by the BJP which bypassed Parliament.
The BJP’s earlier control of 21 state assemblies assured the government could push through some laws in the Rajya Sabha despite lacking a majority. The Modi government ignored the opposition in the Lok Sabha where it had an absolute majority so the idea of Parliament as a forum for consensus and debate was thwarted.
In the BJP’s favour, the Modi government scrapped 1,200 redundant Acts and identified another 1,824 for repeal. Some repealed provisions were absurd such as under the Indian Aircraft Act, 1934, kites were also deemed to be aircraft which mandated getting a permit to fly a kite, making those who celebrated makar sankranti, underage criminal. Under the Indian Treasure Trove Act, 1878 you could be jailed if you found anything worth more than Rs 10 in a public place and did not report it to a revenue officer.
But these were the exceptions and not the rule. To illustrate, on December 30, 2016, Modi cajoled the then President Pranab Mukherjee to promulgate the Specified Bank Notes (Cessation of Liabilities) Ordinance, 2016. Two days later, on Jan 02, 2017, the Supreme Court, in a separate matter, delivered a verdict that changed the law of ordinances.
A seven-judge bench of the Supreme Court held that “re-promulgation of ordinances is a fraud on the Constitution and a subversion of the democratic legislative processes.” The Modi government’s re-promulgation of lapsed bills appears to have subverted democracy in toto.
The judges erased old meanings, unearthed new ones, and strengthened the power of the judges to interpret the constitution to ensure all ordinances had to pass the test of being reasonable as laid down in the Constitution.
The Modi government resuscitated a slew of lapsed bills, so that out of eight ordinances, four merely revived lapsed bills. Four dealt with issues which were never tabled before Parliament, which appears to be a fraud on the Constitution. On February 21, the Central Government re-promulgated the Muslim Women(Protection of Rights on Marriage) Second Ordinance 2019, popularly known as the Triple Talaq Ordinance.
This was the second time the Triple Talaq Ordinance was promulgated within the first quarter of this year. In September 2018, it was promulgated for the first time, after the failure of government to secure the passage of the bill in Rajya Sabha in the monsoon session. In January, it was promulgated again, as the Triple Talaq Bill could not get clearance from Rajya Sabha in the winter session. The Bill met the same fate in the budget session, which concluded on February 13.
This has resulted in the lapse of the Bill, as the lower house will not have any further sessions before the general elections. But strangely, the very same provisions in the form of an Ordinance has been passed. The same thing took place with the Aadhaar and Other Laws (Amendment) Ordinance 2019. This was promulgated on March 2, 2019 following the lapse of the Aadhaar Amendment Bill after the budget session.
The New Delhi International Arbitration Centre Ordinance 2019 promulgated on March 2 was nothing but passing the earlier Bill which had lapsed in the form of an ordinance. The Banning of Unregulated Deposit Scheme Ordinance 2019 promulgated on Feburary 21 was yet another example of a lapsed bill being resuscitated in the form of an ordinance.
The Modi Government also promulgated four other ordinances during the last two weeks, which include the SEZ Amendment Ordinance 2019 allowing ‘trusts’ to apply to set up an SEZ. This apparently will benefit the big business houses which all run trusts to offset their tax liabilities.
The Jammu and Kashmir Reservation (Amendment) Ordinance, 2019 amended the Jammu and Kashmir Reservation Act, 2004 to bring those who lived in areas adjoining the international border within the ambit of reservation at par with persons living in areas adjoining the Actual Line of Control (ALoC). There was a lot of opposition to this by those living in Assam and the other six border states but the Modi government has conveniently stymied these protests.
The Homoeopathy Central Council (Amendment) Ordinance, 2019 which extended the period for reconstitution of the central council from the existing period of one year to two years was also passed in the form of an ordinance as was The Companies (Second) Amendment ordinance 2019 re-promulgated on February 21 which amended several provisions in The Companies Act, 2013 relating to penalties, without allowing for adequate debate in Parliament.
The Modi government has not bothered to table these Bills in Parliament although amending The Companies Act, 2013, will impact the economy. Article 123 of the Constitution permits the President to promulgate ordinances only in emergencies but cannot be used to revive lapsed Bills or thwart Parliamentary debate, thereby flouting a vital canon of democracy.
Although law-making powers are given by Article 123 to redress emergencies when Parliament is not in session. Article 123 (1) pronounces that ordinances are temporary steps for the government to deal with emergencies which cannot wait for Parliament to assemble. President Ram Nath Kovind is the first Indian head-of-state from the RSS and he has proved he is a disciplined soldier by not asking inconvenient questions.
Olav Albuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.
