HPAS/Allied Mains 2022 Answer Writing Challenge Day 104 : Model Answer

Question: Examine whether the deadlock in Parliament has resulted in the increasing tendency of the union government to promulgate ordinances for legislation. Why is it necessary to limit the exercise of this power? (20 Marks)

Answer:

Article 123 of the Indian Constitution grants the President of India certain Lawmaking powers i.e. to Promulgate Ordinances when either of the two Houses of the Parliament is not in session which makes it impossible for a single House to pass and enact a law.

Deadlock in parliament has been increasing every year due to the following reasons:

• Controlled by the ruling party: Parliament is supposed to keep a watch on the government, point to its acts of omission and commission, yet it is, in reality, controlled by the ruling party. It is the governing party that determines when Parliament should meet and what its agenda will be.
• Means to acquire power and wealth: Members seldom seem to value the immense faith the ordinary voters have reposed in them. It is common for members to view their job as a means to acquire power and wealth
• Criminal background: every third of the newly-elected member of Lok Sabha has a criminal background. This is reflective of the growing indifference and contempt of successive generations of parliamentarians for the institutions of Parliament.
• The decline of Parliament authority: The gradual decline of Parliament and attenuation of parliamentary authority is also attributed to frequent absenteeism, deterioration in the conduct and quality of Members, poor levels of participation, and the falling standards of debates and legislative business.
• Disruptions in the name of Dissent: Disruption is a critical component of any democracy and, in that light, disruptions could be seen as a part of established parliamentary practice. it becomes a cause for concern when disruptions become the norm, rather than the exception.

Frequent parliamentary disruptions mean a low number of sittings leading to a decline in legislative activity, budgets getting passed without discussion, urgent bills getting stalled at either of the houses resulting in loss of sitting days and productive business of Parliament.
There has been an increasing tendency of the union government to promulgate legislation through ordinances due to the above-mentioned reasons of the logjam

The idea of the ordinance has to be limited for the following reasons:

• Spirit of parliamentary democracy: An ordinance becomes the dominant form of lawmaking and is used on a whim by the President or the governor (acting on the advice of the government), this has implications for the future of parliamentary democracy.
• Stability and consistency: The overuse of ordinances goes fundamentally against two core tenets of the rule of law, stability and consistency If the purpose of ordinances is to genuinely make “law”— norms and procedures capable of being followed and creating rights and duties— then such a purpose is entirely defeated if there is uncertainty about what the law is going to be in a few months. If the ordinances recently promulgated by the union government were done in good faith, and if the intent was genuinely to reform the laws as they stand, then taking the ordinance route was perhaps the worst possible course of action.
• Suspicions about the government’s motives: Taking the ordinance route may only raise suspicions about the government’s motives and harden the opposition’s stand towards a measure, as was seen with the proposed amendments to the land acquisition law.
• Parliamentary scrutiny: If there is broad consensus that a certain legislative measure is needed, parliamentary scrutiny is valuable in and of itself. Reference to the standing committee and open debate about the merits of a bill and its drafting are likely to address shortcomings or oversights in the law.

Reforms to limit the exercise of the power of ordinance:

• Round-the-year parliament: Have Parliament meets round-the-year, Monday to Friday, instead of the three sessions for which it meets, as is the current practice. Episodic meetings are bound to create episodes, so to speak say, discussing a railway accident. It is this divergence of views that lead to deadlocks. In Britain the Speaker lays out the entire annual calendar as soon as a new government is formed, marking the periods of recesses, the hours of meetings on every day of the week, and on which day the Opposition gets the preference to raise issues.
• The power to make an ordinance is to meet an extraordinary situation and it should not be made to meet the political ends of an individual. Though it is contrary to the democratic norm for an executive to make a law this power is given to the President to meet emergencies so it should be limited at some point in time as pronounced in the case of D.C. Wadhwa v. the State of Bihar.
• There is need for clarity on the nature and extent of the judicial review of the court over the ordinances made by the President or the Governor as various judgements of honourable court on the ordinance is inconsistent

In most cases, the Power of Ordinance making is a controversial topic and a topic of discussion. It tries to disturb the balance between the executive as well as legislative powers by bringing into the element of arbitrariness into the Constitutional System and disturbing the rule of law. Whenever such an ordinance making power is exercised by an Executive body it shows disregard to the legislature. Till now only a few grounds are established to challenge the validity of the Ordinances which directly violates a constitutional provision of separation of power by giving the president exceeding constitutional power.