Jodhpur: On 14 November 2021, the President of India promulgated two ordinances, The Central Vigilance Commission (Amendment) Ordinance 2021 and The Delhi Special Police Establishment (Amendment) Ordinance 2021, granting the government the power to extend the term of directors of the Enforcement Directorate and the Central Bureau of Investigation. 

The opposition has criticised the ordinances on substantive content as well as the use of ordinance procedure two weeks before a session of Parliament, which begins on 29 November. An Article 14 analysis of Parliamentary data reveals rising reliance on executive fiat—which is what an ordinance is—to pass laws, instead of allowing debate in both houses or referring contentious issues to parliamentary committees.

Since 2014, the government of Prime Minister Narendra Modi promulgated 82 ordinances, an average of 11 ordinances per year. Its immediate predecessors, the United Progressive Alliance (UPA) governments led by Manmohan Singh, promulgated 61 ordinances between 2004-2014, an average of 6.1 ordinances per year, indicating a declining reliance on parliamentary democracy. 

Even the least number of ordinances promulgated by the Modi government in any year—seven in 2017—is greater than the average of the previous government.

The Modi government has also surpassed the previous Bharatiya Janata Party (BJP) government of Atal Bihari Vajpayee that governed India between 1999 and 2004. That government passed 33 ordinances, an average of 7.3 per year (here and here). 

Even bills that do not bypass Parliament via the route of an ordinance lack scrutiny. According to the official website of the lower house of Parliament, the Lok Sabha, the number of bills referred to a parliamentary committee by the 15th, 16th and 17th Lok Sabhas between 2009 and 2021 were 68, 24 and 10 respectively. 

Parliamentary committees are a cohort of lawmakers that are supposed to act independent of party positions, to allow meaningful debate and legislative scrutiny. 

The most recent example of these practices being ignored were the three farm laws initially promulgated as ordinances on 5 June 2020 and passed (here, here and here) by Parliament in a day on 27 September 2020 and sparked widespread unrest, which remains despite Modi’s declaration that they would be withdrawn.

“We consulted a range of stakeholders and experts before bringing in these laws,” Modi said on 19 November 2021. There is no evidence that such consultation was done. Indeed there is evidence that his government avoids consultation.

More than 76% of bills introduced between June 2014 and May 2019 had “zero consultation”, which means either the bills were not released for public consultation or breached the deadline of a minimum of 30 days for public consultation, according to 2019 research from Arun P S and Sushmita Patel of Our Gov.in, a think tank.

The importance of parliamentary scrutiny is reflected in criticism by Chief Justice of India N V Ramana, who on 15 August 2021 said that lack of debate in Parliament was a “sorry state of affairs”, as a consequence of which judges did not know “the purpose of the law”. In reaction, that same day, law minister Kiren Rijiju blamed the opposition for crippling debate in Parliament.

The Misuse Of Ordinances

Ordinances are temporary laws made by the President of India or governors in states, on the “aid and advice” of the council of ministers, when Parliament or a state legislature is not in session, provided ”immediate action” is needed, according to articles 123 and 213 of the Constitution. 

While ordinances have advantages (here and here), in a country with many lawmakers and political diversity, such as India, they are prone to misuse and indeed have been misused, leading to the adoption of the term “ordinance raj” in Indian political discourse.

Despite a parliamentary majority of 301 members of Parliament (MPs) in the Lok Sabha, the largest in 30 years, Modi’s government promulgated 46.5% of all ordinances issued over 22 years (1999-2021), according to our analysis. 

A stable government with a large majority in the Lok Sabha should yield fewer ordinances than a coalition government, argued Shubhankar Dam, professor of public law and governance at the University of Portsmouth in the UK in an 2013 paper on ordinances promulgated between 1952 and 2009. This was largely true over the 58 years of his study. 

Our analysis from 1999-2000 revealed the opposite.

“The general claim that majority governments yield fewer ordinances than minority governments is still correct,” Dam told Article 14. “But this is not about the majority in the lower house. Instead, it is about a government's majority status in both houses, that is, whether it has a legislative majority.

Narendra Modi Trumped Only By Indira Gandhi

Modi has the highest number of average ordinances per year—11 as we said—among prime ministers with single-party majorities. 

The only prime minister—among single party majorities—with a higher average was Indira Gandhi of the Congress party, with 14 for her roughly 12-year year tenure over 1966-1967, 1971-1977 and 1980-1984.  

During the 5th Lok Sabha, with Congress occupying 372 seats from 1971-1977, including the 21-month-long period of the Emergency, Gandhi promulgated 99 ordinances or an average of 16.5 per year.

While Dam blamed Nehru for creating a precedent of promulgating ordinances, which successive prime ministers followed, this position is not entirely correct. Nehru promulgated 66 ordinances over almost 12 years of his prime ministership after the first general elections of 1952. 

The real blame lies with British colonial rule, which granted the Governor General the power to make and promulgate ordinances under the Indian Councils Act, 1861.

Constitutional scholar A G Noorani wrote in 1998 that “we have become so accustomed to legislation by the executive that unless a patent abuse is pointed out, we do not question the power”.

However, passing legislation through regular parliamentary procedure is also not an adequate safeguard. 

As statistics from the latest July to August 2021 session of Parliament revealed, 22 Bills were passed, most without discussion, with four replacing an ordinance, as the farm laws did.

The Death Of Legislative Scrutiny

During the 16th Lok Sabha, the tenure of Modi’s first term in office between 2014 and 2019, no more than 27% of bills were referred to parliamentary committees, compared to 60% and 71% of bills during Singh’s two tenures, UPA-1 and UPA-2, according to a 2019 Vital Stats report by PRS Legislative Research, a think tank.

During the 17th Lok Sabha, Modi’s ongoing term in office, only 11% of all bills were referred to parliamentary committees. 

Despite a 2002 recommendation of the National Commission to Review the Working of the Constitution (NCRWC) to refer all bills to Departmentally Related Standing Committees (DRSC), which Parliament adopted in 1993. The NCRWC said such committees would improve the content and drafting of legislation, the declining quality of which Chief Justice Ramana criticised.

Before 1993, select parliamentary committees were formed as and when required. Today, a DRSC is often referred to as a “mini parliament”. However, since referring bills to the committee is not mandatory, there has been an apparent decline since 2014.

A bill’s legislative intent can be gauged if it passed after substantial debate and scrutiny of parliamentary committees, the reports of which aid interpretation and allow expert advice and the direct participation of stakeholders.

For instance, a parliamentary committee tasked with examining the Surrogacy (Regulation) Bill 2016 consulted medical experts and the National Commission for Women. 

Similarly, the Standing Committee on Urban Development (2012-13), while examining the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill 2012 consulted, among others, NGOs working with street vendors and the National Association of Street Vendors of India, before its enactment in 2014. The parliamentary committee also submitted a report in August 2021 on the implementation of the Act.

The lack of consultation in the 17th Lok Sabha is evident from the fact that 70% of bills were introduced and passed in the same session, twice the number of such bills to be passed in this fashion in the 16th Lok Sabha and almost four times the 15th Lok Sabha. 

According to a resume of work done by Lok Sabha, DRSCs in the fifth session of the current Lok Sabha had an average attendance of 45-46%. The Committee on Defence had the highest average attendance at 58.06%.  

Pre-Legislative Scrutiny Is Non-Existent

Only 11% of bills introduced during the 16th Lok Sabha used public consultation, as we noted. Since Modi’s second term, out of 115 bills introduced in the parliament only 14 used such consultation till the monsoon session of 2021.

The ability to participate in the legislative process is fundamental to representative democracy. Dipika Jain, professor at the Jindal Global Law School, wrote in April 2019 that the pre-legislative process not only “enhances transparency and accountability” but also introduces a “collaborative and democratic process” that inculcates “social realities in the law”.

Pre-Legislative Consultation Policy (PLCP) was envisaged as a means to achieve this goal.

Formulated in February 2014, in line with the recommendations of the NCRWC, the PLCP requires draft legislation be made public for at least 30 days. The draft shall accompany a justification for its enactment, details of costs and benefits, impact assessment and explanation of legal provisions.

Such a process opens legislation for public comments, enhancing consultation. The PLCP also requires that a summary of the pre-legislative process must be placed before the DRSC. However, since its inception, the PLCP has been by and largely remained on paper.

Justice D Y Chandrachud of the Supreme Court said in October 2019 that “democratic erosion” takes place in “incremental stages”, with every violation of the Constitution, rights or convention. Deviance from the PLCP in itself might not reflect a worrying trend, but it certainly adds to democratic erosion.

A Role For Courts?

The mechanism for post-legislative scrutiny is generally through committees formed for review or Law Commissions reports or consultation papers. For instance, the Law Commission released a consultation paper on sedition in 2018, questioning its relevance. 

No action was taken on that paper, except criticism offered by Supreme Court judges.

It is apparent that the ordinance-making power of Parliament is being deployed to strangle the little public participation that is left in the process. 

Might The Courts Have A Role?

“Courts should review questions of ‘necessity’,” said Dam, the law professor. “That is the only way left to flatline the use of ordinances. Political parties might be more careful in their use of ordinances, if they know there is a watchful Supreme Court willing to probe their actions.”

While the Central Vista Project, running ahead of schedule, will ensure a new physical structure for the Parliament of India, it is unclear whether a new building will fill the widening gaps in parliamentary practice. 

(Prakhar Raghuvanshi is a fourth-year honours student of constitutional law at the National Law University Jodhpur.)