Law-making through the ordinance route is a right vested in Central and state governments under Articles 123 and 213 of the Constitution respectively. It is to be used as an emergency measure when Parliament and legislatures are not in session. But time and again, the power to promulgate ordinances to push through laws which governments may find difficult to get passed if Parliament and legislatures are in session has been grossly misused.
Many states ruled by the Bharatiya Janata Party are guilty of abuse of this Constitutional power by resorting to bringing in ordinances to amend laws in sectors like labour and agriculture. Their legislatures are not in session and add to that, the COVID-19 pandemic is raging. So what better cover for governments to have their way!
It is not some insignificant legislation we are talking about. They are game-changers but for the worse. Take the changes proposed to labour laws, for instance. The amendments have such broad sweep that Uttar Pradesh has even kept the Minimum Wages Act, a law mandating a certain minimum compensation for every sector, in suspension for three years.
The amendments allow for increased work hours with no talk of compensating the workforce for it. Eight-hour shifts will be passe and 12-hour shifts will be the norm in the States that are bringing in these amendments touted as ‘reform.’
There has been no consultation whatsoever with representative labour unions but industry associations are getting an eager ear. The alacrity with which the BJP government in Karnataka shunted out its Labour Secretary after an employers’ body complained against him is a telling commentary on where its sympathies lie. The industry matters, not the workers who turn its wheels.
The official, Capt Manivannan, an IAS officer reputed for his competence and innovation, had been punished for exhorting workers who had been fired during the pandemic to register their complaints.
In the normal course, the tripartite consultative process involving the government, labour and industry kicks before effecting major changes to labour laws. But that has not been the case so much so that the drastic amendments have prompted the International Labour Organization to issue a statement calling for any changes to laws to comply with international labour standards.
The ILO told Business Standard, “Certain states in India are moving towards relaxing labour laws with a view to revitalise the economy from the impact of Covid-19. Such amendments should emanate from tripartite consultation involving the government, the workers’ and the employers’ organisations and be compliant with the international labour standards, including the Fundamental Principles and Rights at Work (FPRW).”
But are these governments bothered at all by the disapproval of their actions by institutions like the ILO?
These governments are targeting yet another critical sector of the economy, namely agriculture, again by resorting to the ordinance route. The Union Ministry of Agriculture is mounting pressure on state governments to amend the Agriculture Produce Market Committee (APMC) Act. Farmers’ representatives fear diluting the role of the market committees will lead to cartelisation by Indian companies with deep pockets and MNCs.
On Friday even before Finance Minister Nirmala Sitharaman made a strong pitch for doing away with the APMCs at her press conference, BS Yediyurappa’s Cabinet had already given the go-ahead for the ordinance amending the APMC Act to give farmers the option of selling their produce outside the notified market area.
The Centre has for some time been urging the States to review the APMC mechanism, but not all were enthusiastic. But the tearing hurry with which it has been exhorting the States after the outbreak of COVID-19 pandemic to bring in the changes through the ordinance route makes its intentions suspect.
Earlier this month, the Union Agriculture Secretary wrote to the Karnataka government, “I would, therefore, request that your state should consider adopting the same (amendments) urgently through the route of Ordinance in the interest of the farmers and producers to enable them to get better market access for their produce at this juncture for better remunerative prices.”
But again like in the case of the changes to labour laws, there has been no stakeholder consultation. The ostensible intent behind the amendments is to help farmers secure a better price for their produce which the government feels is not possible under the APMC mechanism. But when there is such deep skepticism about the move, should it not be the duty of the governments to discuss the issue with the stakeholders?
These moves are nothing but blatant abuse of a Constitutional right of governments to make laws through ordinances. In 2017, a seven-judge bench of the Supreme Court had observed that Constitution framers had intended this exceptional power to be exercised only to meet a constitutional necessity.
“The issue which needs elaboration is whether an ordinance which by its very nature has a limited life can bring about consequences for the future (in terms of the creation of rights, privileges, liabilities and obligations) which will endure beyond the life of the ordinance,” the bench had observed.
Introducing such sweeping legislative changes in these two vital sectors of the economy have consequences beyond the life of the ordinance. State governments will have no difficulty getting the approval of the legislatures in getting Bills passed to replace the ordinance before six months, given the majority they enjoy.
But law-making is not simply about passing Bills. It is about consultation and debate. It is not a partisan exercise; the Opposition and other stakeholders need to be heard. There is no scope for all of this if laws are made by promulgating ordinances. The debate, for whatever it is worth, will have to wait till the ordinance is brought before the legislature as a Bill. That could mean a lapse of up to six months with the ordinance already having taken effect in the interregnum.
The ordinance tool may be constitutionally kosher but amoral since it goes against the spirit of democracy. Pushing through such important pieces of legislation when the country is under lockdown is nothing but a brazen subversion of the democratic process.
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