The past few weeks saw a troubling phenomenon of lapsed bills resurrecting as Ordinances.
Eight Ordinances were made - four of them reviving lapsed bills, and four of them dealing with issues which were never brought to the Parliament.
On February 21, the Central Government re-promulgated the Muslim Women(Protection of Rights on Marriage) Second Ordinance 2019, popularly known as the Triple Talaq Ordinance.
It is the second time the Triple Talaq Ordinance is getting promulgated within the first quarter of this year. Last September it was promulgated for the first time, after the failure of government to secure the passage of the bill in Rajya Sabha in the monsoon session. In January, it was promulgated again, as the Triple Talaq Bill could not get clearance from Rajya Sabha in the winter session. The Bill met the same fate in the budget session, which concluded on February 13. This has resulted in the lapse of the Bill, as the lower house will not have any further sessions before the general elections. Now, we have the same provisions in the form of the Ordinance.
Similar is the case with the Aadhaar and Other Laws(Amendment) Ordinance 2019. This was promulgated on March 2 following the lapse of the Aadhaar amendment Bill after the budget session. Likewise, the New Delhi International Arbitration Centre Ordinance 2019 promulgated on March 2 is the reincarnation of the lapsed Bill.
The Banning of Unregulated Deposit Scheme Ordinance 2019 promulgated on Feburary 21 is yet another instance of lapsed bill getting new life through executive fiat.
Apart from these, the Government has promulgated as many as four other Ordinances over last two weeks, which include the SEZ Amendment Ordinance 2019 permitting 'trusts' to seek establishment of SEZ; the Jammu and Kashmir Reservation (Amendment) Ordinance, 2019 amending the Jammu and Kashmir Reservation Act, 2004 to bring persons residing in the areas adjoining International Border within the ambit of reservation at par with persons living in areas adjoining Actual Line of Control (ALoC) and the Homoeopathy Central Council (Amendment) Ordinance, 2019 which seeks to extend the period for reconstitution of the Central Council from existing period of one year to two years. The Companies (Second) Amendment Ordinance 2019 re-promulgated on February 21 amends amends several provisions in the Companies Act, 2013 relating to penalties, among others.
As far as these Ordinances are concerned, the Government has directly taken the Ordinance route, without even caring to table any Bill regarding the same in the Parliament.
This flurry of Ordinances when the term of the government is mostly over is not justifiable on constitutional grounds. Article 123 of the Constitution of India, which gives the power to President to promulgate Ordinances, is not meant to be used to revive lapsed Bills or to circumvent parliamentary process.
The central executive is given law-making powers by Article 123 to address emergency situations when the Parliament is not in session.
Article 123(1) : If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require
From the tone and tenor of Article 123, it is very clear that Ordinances are interim, transient measures to be adopted by the executive to deal with emergency situations which cannot await the assembling of the Parliament. Article 123(2) fortifies the temporary nature of Ordinances, as it says that they should be laid before both the houses of the Parliament, and will cease to operate at the expiration of six weeks after the reassemble of Parliament.
A seven judges bench of the Supreme Court in January 2017 observed that "the ordinance making power is not a parallel source of legislation". The Court also held that "re-promulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes"
None of the above ordinances are dealing with an extreme emergency situation. There is no "heavens would fall if the Ordinance is not made" situation present in any of these cases. Rather,there are many debatable issues in these Ordinances, which necessitate deep deliberation by legislators.
Take the case of Triple Talaq Ordinance, which makes pronouncement of triple talaq a punishable offence. The need for criminalising a practice concerning civil rights in matrimony, which has already been held to be void by the Supreme Court, is highly arguable. Both the houses of the Parliament witnessed intense debates whenever the Triple Talaq Bill was taken up for consideration. Now, all those concerns have been obliterated with the stroke of Presidential pen.
The Aadhaar Ordinance too muffles several concerns about the amendment, which warrant a close legislative scrutiny. There is a forceful argument that the amendments are contrary to the spirit of the privacy judgment of the Supreme Court. Also, the Ordinance seems to be an attempt to validate the collection and possession of biometrics by private banks and telecos, which became illegal after the Supreme Court struck down provisions enabling such collection and possession last September. It may be worthwhile to recall that the Bill was passed by Lok Sabha with very little debate on a Friday evening, when the house was marked with low attendance.
As regards New Delhi International Arbitration Ordinance, it is boggling to think of the urgency to establish International Arbitration Centre at New Delhi in the run-up to general elections.
The other ordinances dealing with amendments to SEZ Act, J&K Reservation etc. smack of utter disdain for legislative process, as these issues were never brought before the Parliament through Bills.
This romance with Ordinances does not seem to be based on any other factors except that the ruling alliance has no majority in the upper house. It has always been a herculean task for the government to get Rajya Sabha's nod for its bills, and there have been attempts in past to neutralise possible dissent from upper house such as introducing Aadhaar Act 2016 as a money bill, amending other substantive laws through Finance Bill etc.
The present government is using Ordinances as "parallel sources of power", to cover its inability to secure the assent of the Parliament, especially its upper house, on contentious issues. As the Supreme Court said in its seven judges' bench decision, this is nothing short of a "fraud on the constitution".