The UPA government recently explored taking the ordinance route to promulgate six anti-corruption bills. This article traces the shift from the post-Independence culture of healthy parliamentary debate in India, to ordinance-making powers becoming a procedural device to pass bills without debate. In the interest of a well-functioning democracy, it emphasises the need for the Legislature to engage in debate on legislation, and for the Executive to moderate its ordinance-making powers.

As the curtain fell on the XVth Lok Sabha¹, the Congress Vice President, Rahul Gandhi, floated the probability of taking the ordinance route to promulgate six anti-corruption bills including the Public Procurement Bill, the Electronic Delivery of Public Services Bill, the Citizens Charter Bill, a Bill dealing with Bribery of Foreign Officials and the Prevention of Corruption Act (Amendment) Bill. While Mr. Gandhi is right in urging the United Progressive Alliance (UPA) Government for the immediate passage of these bills, it is worrisome that in a parliamentary democracy, the Executive felt the need to bypass the Legislature and promulgate crucial bills as ordinances.

The ordinance-making powers of the Government of India (Article 123 of the Constitution of India) were consciously shaped on elements of the Government of India Act, 1935 (Articles 42 and 43), and based on other emergency legislation-making powers in other countries. Bequeathed by colonialism, these powers were consolidated despite a long period of one party majority.

Culture of healthy parliamentary debate

Whilst the political system in India (between 1947 and 1968) worked around a “dynamic core” of institutions characterised by the dominance of the Congress Party (Kothari 1970a), dissent and difference of opinions, if any, were usually accommodated within parliamentary debate, actively supported by Jawaharlal Nehru, and complemented by the “Congress System”². It is precisely because of these formal and informal non-state institutional mechanisms that the Executive did not see the need to bypass the Legislature.

The founders of democracy in India were generally united in the importance of democratic processes, and by and large, shunned ordinance-making powers. The first Speaker of the Lok Sabha, G.V. Mavalankar in his letter to Nehru (on July 17, 1954) had vehemently argued that “…an Ordinance is undemocratic and cannot be justified except in cases of extreme urgency or emergency…and if (it) is not limited by convention, only to extreme and very urgent cases, the result may be that, in future, the Government may go on issuing Ordinances giving the Lok Sabha no option, but to rubber stamp the Ordinance”.

Nehru, in his reply, while generally expressing disinclination to ordinances, had argued that “we (the Government) have been reluctant to issue Ordinances and it is only when we have felt compelled to do so by circumstances, that we have issued them”. It is a testament of the Prime Minister’s faith in the resilience of democratic institutions that he had conceded that “this power…may be abused and Parliament will be the ultimate judge as to whether the use of this power has been right…”

Shift towards governance by ordinance

However, much has changed since then. While the Supreme Court (in D.C. Wadhwa vs. State of Bihar, 1987) vehemently stressed that the legislative power of the Executive to promulgate ordinances is to be used only in exceptional circumstances and not as a substitute for the law-making power of the Legislature, it has been observed that the government’s ordinance-making powers have turned what were supposed to be exceptional powers into a procedural device to out-manoeuvre the Parliament³. Coalition governments have increasingly used ordinances to avoid debating legislation with their partners as much as with the opposition, as with V.P. Singh’s surprise decision to implement the Mandal Commission report through a Presidential Ordinance in August 1990.

The shift, from a culture of healthy parliamentary debate to a culture of governance by ordinance, was brought about by a number of variables. However, the single largest contributing factor was the decline of the “Congress System”, ironically a byproduct of the centralising tendencies initiated by Indira Gandhi. The onset of a post-Congress System Parliament (1971 onwards) brought to the fore a system unable, or in some cases unwilling, to accommodate any difference of opinions through the means of mainstream policy debate.

Composition of ordinances and time trends

Critically analysing the ordinances promulgated from 1950 to 2008, what emerges is that they are overwhelmingly in the areas of Finance (129), Home Affairs (102), Labour (46), Commerce and Industry (28) and Law and Justice (29). Only a few of these can be classified as actual emergencies, and hence necessary as mandated by the Constitution (articles 352, 356 and 360 enumerate three kinds of emergencies - war, external aggression or armed rebellion, failure of the constitutional machinery in the states, and threats to the financial stability of the country).

While the number of ordinances issued during the first, second, third and fourth Lok Sabhas (May 1952 to December 1970) were 39, 20, 31 and 34, respectively, this number went up by nearly three times during the fifth Lok Sabha (1971-1977) when as many as 93 ordinances were promulgated.

However, there is a marked difference between the first part of the fifth Lok Sabha (1971-1974) and the Emergency (June 1957 to March 1977). During 1971-1974, the Indira Gandhi Government averaged only 12.7 ordinances per year (even in 1974, which was marked by the Railway strike and Smiling Buddha, only 15 were promulgated). However, during 1975-1976, 45 ordinances were promulgated (29 in the first year alone), most of which were related to the nationalisation of various industries.

This trend was reversed with the Janta Dal promulgating only 34 ordinances in their three-year term from 1977 to 1979 (averaging 11 per year). The next two governments averaged 10 ordinances per year. Likewise, the V.P. Singh (December 1989 to November 1990) and Chandrasekhar (November 1990 to June 1991) Governments also promulgated 10 and nine respectively.

There was a marked upswing in the number of ordinances post liberalisation and governments increasingly resorted to promulgating ordinances as a form of legislation, out of expediency rather than necessity. The Narasimha Rao Government (1991-1996) averaged 21 ordinances per year (shockingly, none of the 32 ordinances promulgated in 1996 dealt with either the corruption scandals⁴ or the prevailing political instability. In fact, none of them were re-introduced as bills, although numerous were re-promulgated⁵ ). The I.K. Gujral Government (April 1997 to March 1998) peaked with 32 ordinances while the Deve Gowda Government (June 1996 to April 1997) passed 31. The National Democratic Alliance (NDA) Government (1998-2004) promulgated fewer ordinances, averaging 14.6 per year, while the first UPA Government (2004-2009) averaged only 6.8⁶.

A hostile Legislature?

However, this self-restraint exercised by the Executive has shown signs of strain recently. The probable promulgation of crucial bills as ordinances suggests that the Executive has resumed bypassing the Legislature. While this cannot be condoned, a nuanced analysis reveals that there may have been a contributing factor. In the 1950s, Lok Sabha met for an average of 127 days while Rajya Sabha⁷ met for 93 days. This decreased to a dismal 73 days for both Houses in 2011. This is largely due to a hostile Legislature that frequently disrupt Parliament on various issues ranging from the allocation of 2G spectrum, coal blocks, Foreign Direct Investment (FDI) in retail, demand for Telengana, and the Commonwealth Games.

With the XVth Lok Sabha passing only 179 of the 328 bills before it, this has been the worst performance of the Lok Sabha in fifty years. In five years, only 61% of available time was used for parliamentary work in the Lok Sabha and 66% in the Rajya Sabha. The Winter Session in 2010 saw the worst record in the past 25 years, with Lok Sabha working for only 5.5% of the available time and Rajya Sabha working for only 2.4%.

While it has been argued that disruptions were a natural byproduct of an unresponsive government, the record suggests otherwise. A working example is the disruptions engineered over the demand for a Joint Parliamentary Committee (JPC) to investigate the 2G Spectrum case. When the government eventually conceded, the Opposition rejected the JPC’s report. Ironically, while discussing the need for a JPC over a separate issue⁸, the leader of the opposition in the Rajya Sabha dismissed the very efficacy of the JPC mechanism arguing that “the JPC will be an exercise in futility… (and a) diversionary tactic”⁹.

All in all, the Legislature in the XVth Lok Sabha has not engaged the Executive in a constructive debate commensurate with established parliamentary norms and standards. Exacerbating the problem, the Executive chose to respond by bypassing the Legislature. Case in point was the Food Security Bill, something that should have ideally united both the government and the opposition. Instead, the opposition refused to engage the government in a debate and the government resorted to passing the historic legislation through an ordinance. This undermining of democratic processes has contributed in no small way to the ongoing policy paralysis, something that the Opposition (and in some measure, the Executive) will have to take responsibility for.

Healthy parliamentary debate crucial for democracy

As India prepares to elect its XVIth Lok Sabha, we need to understand that for the Parliament to function constructively, it is imperative that political parties engage with each other in healthy debate. Moreover, by sufficiently moderating its ordinance-making powers, the Executive would consequentially be forced to engage the Legislature in any effort to pass bills or policies. As a polity, we can make a difference by impressing upon political candidates the standards of parliamentary democracy that we expect of them, and by penalising those who refuse to abide by the standards. It is critical that we do so, for what it is at stake here is the very political fabric of India.

Notes:

1. Lok Sabha or House of the People is the lower house of the Parliament of India.
2. The term “Congress System” is not to be confused with the Congress Party. In referring to the “Congress System”, Kothari (1970a) was referring to a consensus system that accommodated and internalised political differences through an elaborate network of factions within the dominant party of the time (which happened to be the Congress Party). It is precisely because of this extra-institutional mechanism that the Executive did not see the need to bypass the Legislature. This consensus system was severely strained, and eventually broken because these networks were bypassed by centrally appointed leaders, who were answerable only to a central authority.
3. Hewitt and Rai (2010), ‘Parliament’ in Jayal and Mehta (eds.), The Oxford Companion to Politics in India.
4. http://www.outlookindia.com/article.aspx?201582; http://www.rediff.com/money/jun/09crb.htm; http://timesofindia.indiatimes.com/india/Sukhram-convicted-in-1996-telecom-scam/articleshow/10782610.cms
5. Ordinarily, an ordinance has to be introduced in Parliament as soon as it reconvenes, and a bill has to replace it, if the government seeks to continue its provisions. However, ordinances are often not introduced as bills, and are instead re-promulgated once Parliament is adjourned, a clear indication of the Executive bypassing the Legislature.
6. While the record shows that non-Congress governments did promulgate more ordinances, one must bear in mind that barring the NDA, none of them completed full terms. Therefore, any conclusion about a particular government or party relying more on ordinances would be premature.
7. The Rajya Sabha or Council of States is the upper house of the Parliament of India.
8. The VVIP Helicopter case
9. http://164.100.47.5/newdebate/228/27022013/18.00pmTo19.00pm.pdf