FEBRUARY 25, 2019

By Naresh Minocha, Consulting Editor

INDIAN democracy touched a new low with the Promulgation of four ordinances post early closure of budget session of Parliament. There would have been no need for these temporary laws had the Parliament functioned till February-end, instead of ending budget session on 13th February.

The four transient laws are: 1) The Companies (Second Amendment) Ordinance 2019, 2) Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 (popularly known as triple talaq law), 3) Indian Medical Council (Amendment) Second Ordinance, 2019 & 4) Banning of Unregulated Deposit Schemes Ordinance, 2019.

The new low is characterized by the Executive (the Government) usurping the powers of the Legislature (Parliament in this case) through repeated re-promulgation of ordinances.

Of the four ordinances notified on 21st February, the first three are re-promulgations for the third time in each case. All four would cease to be laws if the BJP fails to form the Government after the forthcoming Lok Sabha polls!

It would be for the New Government to decide whether any ordinance should be enacted as a regular law with or without official amendments. Non BJP alliance is highly unlikely to revive Triple Talaq. It emerged as symbol of Vote Bank politics as it overlook the plight of women deserted by husbands in other religions.

The bills introduced in Lok Sabha and not passed by Rajya Sabha lapse after completion of term of lower house (16th Lok Sabha in the present case).

The Government of the day re-issues an ordinance to cover up its failure to get it transformed into a regular law within six weeks of convening of a session of Parliament. Critics can view it as display of arrogance, bordering on contempt for judicial verdicts.

As put the Supreme Court in a verdict dated 2nd January 2017, "Re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, as laid down in the judgment of the Constitution Bench in D C Wadhwa" (case).

The Court also concluded: "The Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority".

If resort to ordinance is not restricted to emergency situations, then a stage might come where ordinance may become the norm and regular law an exception. It is here pertinent to recall what late Z.H. Lari said in the Constituent Assembly on 8th November 1948.

He stated: "There was a time when we used to complain that Ordinance was the rule and legislature was hardly consulted. I may here refer to the Father of the Nation who said: ‘Under the British rule, the Viceroy could issue Ordinance for making laws and executing them. There was a hue and cry against the combination of legislative and executive functions. Nothing has happened to warrant a change in our opinion. There should be no Ordinance rule. The Legislative Assemblies should be the only Law makers'."

NDA Government has to its credit 54 ordinances which is more than twice the ones (25) issued by previous UPA Government in its 2 nd tenure. The total temporary laws include several re-promulgated ordinances.

Modi Government should explain why and how frequent resort to ordinances constitutes Minimum Government, Maximum Governance.

The explanation is required keeping in view the fact that BJP fought against the Ordinance raj when UPA was in power. It is here pertinent to recall what Arun Jaitley, as the Leader of the Opposition in Rajya Sabha, stated on 2nd September 2013.

He moved a resolution "opposing the use of Ordinance path" for National Food Security (NFS) bill. Referring to political events organized by UPA to market NFS initiative, Mr. Jaitley said such "showcasing" sends only political signals and is not effective implementation of bill. He observed such acts "can never be a lawful, valid ground for promulgation of an ordinance".

Success in framing temporary laws reflects BJP-led NDA's failure to utilize 2014 mandate to herald the dawn of a new legislative India. The mandate was not used at all to clear the mountain of pending bills with some being decades' old. As many as 1980 bills, both Governmental and private, are pending in Parliament.

Did Prime Minister Narendra Modi extend his love for speedy decisions to this backlog? As the Leader of the House (Lok Sabha), did he strive to build broad political consensus for whittling down this mountain of bills? Did he work for long-neglected parliamentary reforms?

The popular mandate was, in fact, misused by sneaking in amendments to certain major laws in the Finance Bill, which is a money bill. Such bills, which are introduced in Lok Sabha, cannot be defeated by Rajya Sabha.

The popular mandate was not tapped to revive and enact few important bills that lapsed after exit of UPA regime. The lapsed bills, not touched by Modi Government, include Direct Taxes Code, 2010, the Public Procurement Bill, 2012 and half a dozen anti-corruption-focused bills.

It is here pertinent to keep in mind fact that UPA was a coalition led by Congress. It lacked the numbers to form the Government on its own. And yet it did not invoke ordinance-issuing powers with the same zeal as shown by BJP.

As we know, the bills introduced in Rajya Sabha do not lapse. The new Government, however, has a right to reconsider bills introduced in Rajya Sabha for moving amendments or for withdrawing them to introduce fresh ones.

Many bills, not passed by Lok Sabha or passed, but pending in Rajya Sabha, would thus lapse after dissolution of 16th Lok Sabha. Thus, 22 bills, which are in addition to ordinances, would lapse after constitution of 17th Lok Sabha.

The bills, destined to lapse, include Dam Safety Bill. Introduced in Lok Sabha on 12th December 2018, it provides for surveillance, inspection, operation and maintenance of specified dams for prevention of dam failure that can lead to disasters.

Yet another important bill destined to lapse is the Inter-State River Water Disputes (Amendment) Bill. Pending since 14th March 2017 in Lok Sabha, the Bill provides for initiatives to overcome grave deficiencies that have delayed resolution of such water disputes.

Apart from lapsed bills, the Government holds back many bills taking into account the Parliament's failure to meet more often. The data on number of bills that missed entry into Parliament is perhaps not compiled.

The problem of lapsed bills arises partly due to Executive-Parliament joint failure to arrange more sittings of both houses. The 16th Lok Sabha had only 331 sittings in which it cleared 205 bills.

According to M.R. Madhavan, President, PRS Legislative Research, this performance is below the 468-day average for all previous full-term Lok Sabhas. The 16th Lok sabha lost 16% of its time to disruptions.

The Rajya Sabha had 239 sittings during which it passed 154 bills. Should both houses of Parliament not meet more often to discuss and approve new bills?

Neither NDA nor the UPA cared to implement recommendations of National Commission to Review the Working of the Constitution (NCRWC) on slew of parliamentary reforms.

In its report submitted in March 2002, it recommended: "the minimum number of days for sittings of Rajya Sabha and Lok Sabha should be fixed at 100 and 120 days respectively".

If we go by this modest norm, Lok Sabha should have met for 600 days and Rajya Sabha for 500 days. Should voters not take both BJP and Congress to task for failure to act on NCRWC's recommendations?

The least the parties can do is to commit themselves to parliamentary reforms and detail them in their respective manifestos. They must promise not to use ordinance as an instrument for political grandstanding and for marginalizing the legislative process.

Let political parties clarify to voters their stand on package of reforms recommended by NCRWC.

A few salient recommendations of NCRWC are: A) Formation of a Standing Constitution Committee of Parliament for a priori scrutiny of the Constitution amendment proposals. B) Streamlining the functions of the Parliamentary and Legal Affairs Committee of the Cabinet. C) Setting up of a new Legislation Committee of Parliament to oversee and coordinate legislative planning. (D) Referring all Bills to the Departmental Related Parliamentary Standing Committees for consideration and scrutiny.

There are many more initiatives that the new Government can and should do to undertake sweeping legislative and legal reforms. The objective should be to make laws simple, fewer and less vulnerable to litigation.

While drafting manifesto for forthcoming polls the political parties should pay heed to observations about Parliament made by NCRWC.

It stated: "There is increasing concern about the decline of Parliament, falling standards of debate, erosion of the moral authority and prestige of the supreme tribune of the people. Corrective steps are urgently needed to strengthen Parliament's role as the authentic voice of the people as they struggle and suffer to realise the inspiring vision of a free and just society enshrined in the Constitution".

NCRWC added: "Also, it is of the utmost importance for survival of democracy that Parliament continues to occupy a position of the highest esteem in the minds and hearts of the people".

Ends