How PM Modi is skirting Parliament, one ordinance at a time

On November 26, Constitution Day, Prime Minister Narendra Modi once again cautioned Indians against the “dangers to democracy”. An appraisal of the Modi government’s track record vis-à-vis a fundamental role of the Legislative in the functioning of India’s parliamentary democracy – transaction of legislative business – may, thus, not be out of place. After all, the venue of Modi’s speech was the Central Hall of Parliament and the occasion was the anniversary of the adoption of the Constitution of India by the Constituent Assembly on November 26, 1949.

On November 14, a fortnight before the scheduled commencement of the winter session of Parliament and 12 days before the Constitution Day, President Ram Nath Kovind, on the advice of the Modi government, promulgated two ordinances. These ordinances – Central Vigilance Commission (Amendment) Ordinance 2021 and Delhi Special Police Establishment (Amendment) Ordinance 2021 – envisage granting the Centre powers to extend the term of directors of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) for up to an additional three years above the minimum Supreme Court-mandated tenure of two years.

The criticism of these ordinances has largely been on two grounds. First, the apprehension that by granting itself powers to decide whether chiefs of the two investigating agencies merit extension of service after completion of their two-year fixed tenure, the Modi regime was further strengthening its grip on the CBI and ED. Second, and more importantly, use of the ordinance route on an issue that prima facie does not fulfil the constitutional requirement of the Executive using such promulgation only under circumstances “which render it necessary for immediate action” – and that too when a session of Parliament was only 15 days away.

Senior advocate and Congress’ Rajya Sabha MP Abhishek Singhvi says the only purpose that the ordinances on the CBI and ED chief serve is to “take these institutions from discipline and upholding the rule of law to dutifulness to their political masters…the introduction of these ordinances just two weeks ahead of the Parliament session is an attempt at sabotaging, sidestepping, skirting the institution of Parliament.”

An ordinance – essentially an Executive decree – is a special provision under Article 123 of the Constitution that the Centre may invoke, through the President of India, to address issues of public importance that require “immediate” legislative action when Parliament is not in session.

An ordinance has the same “force and effect” as an Act of Parliament but it must be introduced before Parliament for discussion and passage at the first session convened after promulgation. Article 123 (2)(a) mandates that an ordinance “shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period, resolutions disapproving it are passed by both Houses…” A corresponding provision for ordinances promulgated by Governors of states, on the advice of the respective governments, is laid out under Article 213 of the Constitution.

It is also important to point out that among all parliamentary democracies of the world, the provision of legislation through ordinance is available only in India, Pakistan and Bangladesh. The instrument is actually part of our colonial hangover that flows from the Indian Council Act of 1861 and the subsequently enacted Government of India Act, 1935, each of which included the ordinance provision to grant legislative powers to the British Governor General lording over pre-independent India.

The precedents

Successive governments have, to varying degrees, used the ordinance route to enact laws when Parliament is not in session. As such, it may be argued that the Modi regime is simply following precedents. But is there something that sets the Modi government’s Ordinance Raj apart from the record of its predecessors?

A cursory glance of the number of ordinances passed by successive governments – their legislative strength and robustness of the functioning of Parliament (or the lack of it) notwithstanding – establishes the Modi government’s growing proclivity for ruling through Executive diktat. In the seven and a half years since Modi became Prime Minister, his government has issued 82 ordinances, as per records of the Union law ministry’s legislative department.

The fledgling United Front government, during its 1996-98 term, under two prime ministers, HD Deve Gowda and IK Gujral, saw the promulgation of 51 ordinances at a strike rate of more than two per month. However, given the UF government’s short and troubled stint, a comparison of its heavy reliance on Executive decrees with Modi’s fondness for the same may not entirely be fair. A better yardstick would, thus, be governments that lasted a full term or more – a majority of them Congress-led and so, in Modi’s own worldview, the prime examples of how Executives must not act.

A Lok Sabha publication titled Presidential Ordinances 1950-2014 shows that between January 1950 and December 2014, a total of 679 ordinances had been promulgated. India’s first Prime Minister Pandit Jawaharlal Nehru had cleared about 103 ordinances during the period from 1950 to 1964. Nehru’s daughter, the late Indira Gandhi, had issued 102 Ordinances during 1971-77, at the rate of almost three ordinances every two months. During her complete tenure as a Prime Minister for 15 years, Gandhi had paved the way for 191 ordinances. Among these were also the ordinances to declare a national Emergency and a subsequent one to suspend fundamental rights of citizens during the period of the Emergency.

Then President Fakhruddin Ali Ahmed was criticised for signing on the ordinance and a cartoon by Abu Abraham depicting the former President signing it has since remained in public consciousness.

Historic cartoon on Emergency by Abu Abraham (Indian Express). President Fakhruddin Ali Ahmed from bathtub signing Indira Gandhi's Ordinance pic.twitter.com/K5nTwbgHl1

— J Gopikrishnan (@jgopikrishnan70) June 25, 2017

The Rajiv Gandhi government issued 35 ordinances in five years from 1985-1989 while the minority Congress government of PV Narasimha Rao issued 114 ordinances. Even India’s first BJP-led central government – the NDA regime of Atal Bihari Vajpayee – issued 42 ordinances during its 1999-2004 tenure. The term of Modi’s immediate predecessor, Manmohan Singh, saw 61 ordinances being promulgated – a majority of these during UPA-II when Parliament was almost permanently paralysed in wake of mounting allegations of corruption against various central ministers.

While official data establishes Modi’s over-reliance on ruling by fiats – and by extension a declining reliance on parliamentary democracy, the objectives that several ordinances promulgated since 2014 serve too signal multiple worrisome trends. A former secretary general of the Rajya Sabha tells The Federal, on condition of anonymity, “There are a few clearly discernible trends in the kind of ordinances that have been promulgated in recent years… some, no doubt, serve the constitutional mandate for an ordinance as an instrument for urgent action, others seem only to fulfil a self-serving, somewhat even nepotistic, agenda of the Prime Minister wanting to favour his chosen few. The ordinances to amend the TRAI [Telecom Regulatory Authority of India] Act or recent ones on the CBI and ED chiefs, prima facie, fall under this category.”

In June 2014, within a fortnight of the BJP’s victory in the Lok Sabha polls, the Modi cabinet had recommended promulgation of an ordinance to amend the TRAI Act. This ordinance facilitated the appointment of ex-TRAI chief Nripendra Mishra as principal secretary to the Prime Minister. In essence, the Modi government’s first ordinance and its latest two ordinances (extension of tenures of CBI and ED chiefs) served the same purpose – allowing the PM to bless his chosen few with positions of power.

The ordinance to extend the term of the ED chief was promulgated four days before the incumbent, 1984-batch IRS officer SK Mishra, was to demit office on November 18. The ordinance has now given Mishra, an officer known to be close to Modi and under whose stewardship the ED has been aggressively pursuing cases against several political leaders from the Opposition, an additional three years in office. This, even as a Supreme Court bench of Justices L Nageswara Rao and BR Gavai had, in September, told the Centre that “no further extension shall be granted to” Mishra beyond November 2021.

The case of two Presidents

There were early signs of Modi’s preference for ordinances over enactments by Parliament. In fact, within the first eight months of taking over as Prime Minister, Modi had approved nine ordinances to be promulgated by the then President, Pranab Mukherjee. Among these was also an ordinance to severely dilute the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act – commonly referred to as the Land Acquisition Act. After protests by the Opposition and Congress leader Rahul Gandhi’s ‘suit boot ki Sarkar’ jibe, Modi decided to finally junk this ordinance after having referred it for re-promulgation twice.

Modi’s frequent reliance on the ordinance route had even irked President Mukherjee in January 2015, when within a fortnight of the conclusion of Parliament’s winter session, he received seven ordinances approved by the Union cabinet for promulgation. The late Mukherjee, known for being a stickler for parliamentary rules and constitutional provisions, had reportedly asked the government to explain the urgency behind issuing so many ordinances.

Mukherjee’s successor, President Kovind, however, has shown no such discomfiture over Modi turning an emergency legislative instrument into a routine one. The former Rajya Sabha official quoted above says the “readily available consent of the current President to any and every ordinance sent to him by the cabinet for approval, evidently without weighing their merits on constitutional and legal benchmarks, is almost reminiscent of the haste President Fakhruddin Ali Ahmed had shown when he gave his midnight assent to Indira Gandhi’s ordinance for proclamation of Emergency in 1975”.

The former Rajya Sabha secretary general also points to another category of ordinances he describes as the “worst of the lot and potentially a death knell for established conventions of parliamentary democracy”. These are ordinances that have been brought “purely as a means to bypass the constitutional requirement of stakeholder consultations on and parliamentary scrutiny of proposed laws – the farm laws, initially brought as ordinances and now set to be repealed after year-long protests by farmers, are a prime example”.

During the month-long winter session, which commenced on Monday, senior Trinamool Congress MP in the Rajya Sabha Derek O’Brien plans to ask the Centre to explain its inclination towards an “Ordinance Raj system of governance”. O’Brien feels that by routinely taking the ordinance route for legislation on potentially problematic issues, the Modi government “bypasses all established processes of pre-legislative stakeholder consultations, adequate parliamentary debate and scrutiny by various department related parliamentary committees.”

Parliament stalled

While O’Brien is worried about ordinances being turned into laws without the necessary parliamentary scrutiny, it is also crucial to note that the Centre’s push for such Executive decrees has been gaining momentum alongside a rapidly declining productivity in Parliament’s legislative business and functions.

Official records from the Lok Sabha show a drastic fall in the number of Bills referred to parliamentary committees for deeper scrutiny before they are enacted as laws. For instance, 68 Bills were referred to various department-related parliamentary committees during the tenure of UPA-II but the Modi government, between 2014 and 2021, has sent only 34 Bills to these oversight panels that comprise members representing both the ruling and Opposition parties.

Similarly, through its brute majority in the Lok Sabha and crafty floor management in the Rajya Sabha, the Modi government has often succeeded in getting a plethora of Bills passed without any consultation – often in din. The manner in which the three contentious farm laws were passed in the Rajya Sabha a year ago by denying the Opposition’s request for voting followed by a division of votes was screened live on national television. The last session of Parliament, official records show, saw two dozen Bills being passed without any real discussion or debate.

Evidently, there are clear dangers to India’s democracy but they aren’t from critics who lament the swift erosion of established constitutional norms and parliamentary praxis. The dangers, if any, stem from the obvious pitfalls of turning a parliamentary democracy into one that is ruled through Executive fiats.