Ordinance route is a “Temporary Deviation” from Democracy
Democracy is the enshrined principle in the Constitution of India bestowed to the people of India by the makers of constitution. The same makers of constitution gave the President of India the power to promulgate an ordinance by virtue of the Article 123 of the constitution. According to the Article 123, if at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require.
An Ordinance promulgated under article 123 have the same force and effect as an Act of Parliament, but every such Ordinance shall be laid before both House of Parliament and shall cease to operate at the expiration of six weeks from the reassemble of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses.
The main motive behind introducing the provision of Ordinance in the constitution was to give the power to the president to legislate in case of emergency if parliament is not in session. Since Article 74 states that there would be Council of Minister headed by the Prime Minister to aid and advise the President, actually the ordinance making powers of President are wielded by the Prime Minister.
Origin of Article 123 can be traced back to Government of India Act 1935 which gave the ordinance making power to the Governor General. The Section 42 of the Government of India Act empowered the Governor General, who was the highest executive authority during British India period, to promulgate ordinance when the legislature in recess. During the framing of the constitution, there was opposition to give such powers to the President as it is open to misuse and will also dilute the spirit of democracy. There were examples of other major democracies like the United States (US) and the United Kingdom (UK) which don’t have such provisions. But ultimately they realized that since Parliament cannot sit throughout the year, it was necessary to give the executive power to promulgate ordinance.
How Ordinance Bypasses Democratic Process
Since Article 123 (2) provides that an Ordinance issued under it, shall have the same force and effect as an Act of Parliament. Thus, there is hardly any difference between a regular Act and an Ordinance. But often ordinances are criticized because they issued bypassing the Parliament which is formed by the elected representatives. Unlike a normal act passed by the Parliament, there is no scope for the detailed discussion on the provisions of an ordinance. It is for that reasons, often the opposition parties criticize the government for bypassing the democratic process whenever an ordinance is issued.
After the issuance of an ordinance, whenever Parliament reconvenes itself, ordinances are laid before the parliament. The Parliament has framed certain rules to ensure that this power is not abused by the Executive, simply to avoid a vote or debate in Parliament. If a notice of a statutory resolution given by a private member, seeking disapproval of an Ordinance is admitted by the Chairman, RajyaSabha or the Speaker, LokSabha, as the case may be, time has to be provided by the Government for discussion thereof. Moreover, since an ordinance has to pass by the parliament within the six weeks of its first sitting, there is a check of legislature on the discretionary power of the executive.
Why There Is Political Turmoil Over Land Acquisition Ordinance
Since the last sixty years, 1993 saw 34 ordinances being passed, the highest number of ordinances in post independent India. During the period of Pt Jawaharlal Nehru and Indira Gandhi, more than 200 ordinances were issued. In comparison, a fewer number of ordinances are now being issued. For example, in the last 10 years the average number of ordinances issued per year is only six. Thus in a way, we can say our democratic system is quite matured now. But since ordinances are being issued since long time by every political party and in every year, then why there is so many hue and cries over the latest ordinance.
The reason lies in the current composition of Parliament, usually, it was seen that the political party having majority in LokSabha has the majority in RajyaSabha as well. But this time ruling BJP has majority in LokSabha but is in minority in RajyaSabha. In order to bill get passed, it has to be passed by both the houses of the Parliament. Under current circumstances, any bill passed by LokSabha is bound to be stuck in RajyaSabha. Therefore, once the entire winter session was washed away in the controversies, government took the recourse of ordinances. Another reason for the protest against the current ordinance is that it involves the sensitive issue like land acquisition. Most political parties, particularly in the opposition boast of the socialistic principles, so any act favoring the industry over agriculture is vehemently opposed by them.
It is very likely that whenever parliament will reconvene for the Budget session, the Ordinance on land acquisition would not be able to pass through RajyaSabha. However, government have the option to call the joint sitting of the Parliament if both houses have different opinion on the bill as happened in 2002 when joint sitting of Parliament was called after Prevention of Terrorism Act (POTA) was not passed by the RajyaSabha.
Though ordinances bypass the legislative process which is a landmark of democracy in India, there have been adequate safeguards provided which would not allow the government to issue ordinances in an arbitrary manner. Moreover, since an ordinance has to be passed by the legislature within the six weeks of its first sitting, an ordinance is just a temporary measure to an issue which needed the ‘immediate action.