- Undeniably, the Indian democratic system guided by the tenets of the Constitution is working satisfactorily drawing accolades from the global community for its vibrancy and effectiveness. Of course, the democratic form of governance is usually characterized by chaos and disorderly occurrences pulling in different directions. However, the fundamental premise of democracy viz. by the people, of the people, and for the people will never change and remain firmly ensconced guiding the elected governments in serving citizens. As you are aware, democracy functions effectively with the active participation of the three pillars namely, the legislature, the executive, and the judiciary discharging responsibilities as enunciated in the Constitution.
PC: Prof Upendra Baxi
- The legislature is meant to enact laws after due consideration, deliberations, discussions, amendments, and if required, complete overhauling keeping the country’s larger interest in mind. For this to happen, the Parliament at the Centre and the Assemblies at the States are entrusted to pass relevant laws within the purview of the Constitution mandated Articles. However, one of the vexed issues bogging the country is the recurrent embracing of the ordinance route completely circumventing the parliamentary norms. The convention has it that the promulgation of ordinances is to be adopted only during emergencies and when the parliament is not in session. However, successive governments keep exploiting the situation for no rhyme or reason.
- For the uninitiated, Article 123 of the Constitution allows the President to promulgate an ordinance when Parliament is not in session. As mentioned above, ordinances are meant to be used when circumstances demand immediate action. When assessing the procedural merit of the two ordinances promulgated recently to empower the Government of India to extend the tenure of the directors of CBI and ED for up to five years, many would make the case that Parliament’s winter session was not slated to begin before one of the officers was to demit office, and therefore an ordinance was required.
PC: TULIKA TANDON
- Note that these deadlines are no surprises, especially given that the Supreme Court had also heard that the matter of extensions earlier. Therefore, it can also be argued that relevant amendments could have been placed before the Parliament earlier. Looking back in history, ordinances evoked some uneasy responses during Constituent Assembly debates as well. The report mentions that no less than BR Ambedkar even pointed out that ordinances are not meant to be used as a parallel power of legislation. Unfortunately, that is what happened earlier and is happening now in many cases.
- The most egregious example perhaps is that of Bihar were between 1967 and 1981, 256 ordinances were repeatedly repromulgated and kept alive for a staggering 14 years. It is worth reiterating that ordinances are meant to deal with emergencies alone when the normal parliamentary route is not available as a recourse. Make no mistake, the Parliament is the appropriate body for law-making, and decisions that weaken its role should be completely avoided. The elected representatives should make concerted efforts at the procedure rather than breaking the same with impunity.
