The Ordinance Raj of the Bharatiya Janata Party

By increasingly resorting to ordinances, the Centre has flouted democratic norms and undermined the spirit of parliamentary democracy

An ordinance is a temporary law made by the President of India (on the advice of the central government) when Parliament is not in session. An ordinance becomes a permanent Act (the law of the land) on being approved by Parliament within six weeks of reassembly.

As Parliament convenes amid the Covid-19 pandemic from Monday, it will need to consider and approve ordinances promulgated over the past six months. Since March 24, when the lockdown was imposed, 11 ordinances have been signed by the President.

With every session, the Bharatiya Janata Party (BJP) is brazenly rewriting the rules of Parliament. Cancel Question Hour, so the Opposition isn’t given a chance to hold the government accountable. Slash Zero Hour time by half, from 60 minutes to 30 minutes, to deprive the Opposition of raising issues of importance. Misuse a constitutional tool such as an ordinance to mock Parliament, in a way it hasn’t been done in 70 years.

Five of the 11 ordinances are broadly related to the outcome of Covid-19, coupled with two in the health sector. All the other ordinances are unrelated to the pandemic, including the Banking Regulation (Amendment) Ordinance, and the three ordinances related to agriculture.These are the 11 ordinances that Parliament will be required to approve in the coming fortnight.

Many previous Presidents have raised questions about individual ordinances. The current President, in his wisdom, prefers to go ahead without asking questions. Unchecked, the BJP government has embraced an unfortunate culture of ordinances. Some statistics are revealing. In the first 30 years of our parliamentary democracy, there was one ordinance promulgated for every 10 Bills introduced in Parliament. In the following 30 years, the ratio was two ordinances for every 10 Bills. In the 16th Lok Sabha (2014-19), the number jumped to 3.5 ordinances for every 10 Bills. In the current Lok Sabha it is, so far, 3.3 ordinances to every 10 Bills.

Look at it another way. Between 1998 and 2004, when the BJP-led National Democratic Alliance was in office, the government promulgated 9.6 ordinances a year. Between 2004-09 (United Progressive Alliance-I), 7.2 ordinances were issued a year and for UPA-II, it was down to five a year. Between 2014 and 2019, in the first term of the Narendra Modi government, the number shot up to 10 ordinances a year. About 10 ordinances were issued on the eve of the 2019 general election. Clearly, the BJP has a preference for short-circuiting democracy.

Ordinances have to be approved by Parliament within six weeks of reassembly. So, is there really a problem, or are we in the Opposition only being sticklers? No, there is a problem. In fact, two problems. One, the BJP government thinks nothing of re-promulgating ordinances that have lapsed. This is a breach of convention and extremely undemocratic. But the Modi government has done it more than once. Two, a bill that seeks post-facto approval for an ordinance is often rushed through the House. The deliberation and fine-tuning, the pre-legislative stakeholder consultations and the committee scrutiny, are important stages in the passage of a law. Ordinances that hurriedly become Bills and then Acts bypass this process.

Is the BJP government guilty of pushing laws that it wants in place without adequate parliamentary discussion or scrutiny by Parliament committees? Or while the country is distracted by a pandemic? Consider a few of the recent ordinances.

The Banking Regulation (Amendment) Ordinance is a response to the Punjab and Maharashtra Cooperative Bank scandal. There have been two parliamentary sessions since the scandal became public knowledge, and no draft bill was introduced.

Similarly, permitting corporate farming, and liberalising agricultural trade regimes as well as produce movement to benefit big retailers, should have been preceded by adequate parliamentary debate.

These are significant and controversial decisions. Has care been taken to address the information asymmetry between farmers who sell and big traders and corporations that buy? This could have been scrutinised by a parliamentary committee. The ordinance glosses over it — passing itself off as either pandemic relief to farmers or an economic reform. It is neither. The timing of such ordinances is very odd and no coronavirus-related gap is being filled.

This problematic ordinance culture has extended to BJP-run states as well. During the lockdown, BJP governments in Uttar Pradesh, Madhya Pradesh and Gujarat issued ordinances diluting labour laws, without consulting worker unions and civil rights groups.

Even the International Labour Organisation advised caution. On March 15, just before the lockdown, the Uttar Pradesh Recovery of Damages to Public and Private Property Ordinance was promulgated.

It sought to impose punitive fines on those who damaged public and private properties during protests. This is a law reminiscent of the colonial era.

To support and enable the implementation of the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, the central government is pushing states to amend their Agriculture Produce Marketing Committee Acts. This will minimise the role of state market committees and risk creating agricultural cartels of big food businesses and retailers. Uttar Pradesh, Madhya Pradesh, Gujarat, and Karnataka have acted as per command and promptly promulgated ordinances.

Where will this stop?

Post Script: There are only three parliamentary democracies in the world that permit the ordinance route — India, Pakistan and Bangladesh. The practice in India was adopted from the Government of India Act, 1935, where the viceroy could do as he pleased. In every other country, Parliament has to be convened in order to get a law passed.

[This article appeared in the Hindustan Times| Friday, September 11, 2020]