The functioning of any democratic institution relies on a robust legislative process to ensure the effective governance of a nation. The Indian Parliament, as the supreme legislative body of the country, plays a crucial role in enacting laws and making decisions that affect the lives of millions of citizens. The Parliament is entrusted with the responsibility of formulating and passing legislation, thereby representing the aspirations and interests of the citizens. However, in recent times, there has been a growing concern over the frequent passing of ordinance bills by the Indian Parliament, which often bypasses the usual legislative process and raises questions about the sanctity of democratic principles. This article aims to explore the consequences and implications of using the ordinance route, shedding light on the potential risks it poses to democratic governance in India.
Understanding Ordinance Bill:
Definition and Purpose:
Ordinance bills can be defined as temporary laws enacted by the President of India on the advice of the Council of Ministers when Parliament is not in session. They possess the same legal status as Acts passed by the Parliament but are subjected to parliamentary scrutiny within a specified period of six weeks. The purpose of an ordinance bill in India is to allow the government to respond quickly to urgent situations or address important matters that require immediate action. However, it is temporary in nature and must be approved by both houses of Parliament within a specified period to become a permanent law. Article 123 of the Indian Constitution authorises the President to issue ordinances during Parliament’s break[i] , while Article 213 empowers Governors to issue ordinances when the legislature is not in session[ii]. An ordinance passed while the parliament is in session or both houses passed a resolution opposing the ordinance is deemed null and void.
Historical Context:
The historical context of the ordinance bill in India date back to the period of British colonial rule. During this time, the colonial authorities utilized ordinances as a mean to enforce laws without the need for extensive parliamentary deliberations. This practice continued even after India gained independence in 1947. The framers of the Indian Constitution recognized the need for immediate action in certain situations when Parliament was not in session. To address this, they included provisions in the Constitution that allowed the President of India to promulgate ordinances based on the advice of the Union Cabinet. The use of ordinances in India has evolved over time, and they have been used to address various issues, including emergencies, urgent policy matters, and other situations that require immediate action. While ordinances serve as temporary measures, they must be approved by both houses of Parliament within a specific period to become permanent laws.
The Growing Concern: The Increase in Ordinance Bill:
Ordinance bills are a means by which the executive branch can enact laws without the approval of the legislature. While this power can be necessary in certain circumstances when immediate action is required, the overuse of ordinance route can raise concerns about the concentration of power in the hands of the executive branch and can undermine the legislative branch’s role. The legislature has traditionally been responsible for representing the will of the people and serving as a check on the executive branch but excessive use of ordinance bills which can bypass the regular legislative process and reduce the opportunity for in-depth debate, scrutiny, and amendments raises questions about democratic principles. The independence and decision-making authority of the legislature might be undermined as laws are enacted without its full involvement.
The first Modi government has promogulated 57 ordinances which was third highest number by any elected government[iii] in its five-year tenure. Data available with PRS Legislative Research and the Lok Sabha secretariat shows 61 ordinances were promulgated between May 2004 and May 2014. But after the National Democratic Alliance took over in 2014, 76 bills have been pushed through the ordinance route signalling the current regime’s preference for the quicker executive route to enact laws[iv]. The numbers were highest in 2019 as 16 of them were issued but since then there has been a steady decrease in number of ordinances promogulated by centre as in 2022, for the first time in 59 years no ordinances were promulgated. Although in 2023, the centre issued the controversial “The Government of National Capital Territory of Delhi (Amendment) Ordinance” which overturned Supreme Court’s judgement that gave Delhi government control of bureaucrats in Delhi not the Centre. The passing of bill faced harsh opposition by Delhi CM Kejriwal who called it ‘murder of democracy’ and added “PM Modi does not obey the Supreme Court’s order. The public had clearly said that the Centre should not interfere in Delhi by defeating them, but PM does not want to listen to the public.”[v] Though Centre gave clarification about why Delhi ordinance bill was necessary these kind of decisions sparks debate and questions about democracy being hindered by political parties for political gain. To maintain a healthy democratic system, it is crucial to strike a balance between the executive and legislative branches by limiting use of ordinance route to situations that genuinely require urgent action but in this case was it necessary? The opposition does not agree as AAP MP Raghav Chaddha said that the party will fight against the bill in the judiciary. He proposed the constitution of a Select Committee to discuss the bill but was soon suspended from Rajya Sabha for violation of rules and misconduct over including signatures of some MPs without their consent. Chaddha took to X (Twitter) to refute the allegations and said he was suspended for asking questions about the bill.[vi]
Implications and Consequences:
One of the primary concerns arising from passing of such ordinance bills is the circumvention of democratic norms. The Indian Parliament operates through a system of checks and balances, ensuring the participation of different political parties, public representation, and thorough debates on crucial issue. Parliamentary committees also play a crucial role in scrutinizing bills, conducting detailed examinations, and gathering expert opinions before recommending changes or improvements. However, when ordinances are passed, it disrupts this process by suppressing parliamentary debate and undermining the role of elected representatives. Ordinances are often formulated in haste to tackle urgent issues, leaving little time for comprehensive analysis or thorough examination. As a result, the quality of legislation can be compromised, leading to unintended consequences and potential conflicts with existing laws. This not only weakens the rule of law but also undermines the credibility of the legislative process.
Another consequence is the erosion of public discourse. When critical issues are addressed through ordinances rather than regular legislation, it minimizes the opportunity for extensive public debate and engagement. This limits the scope for diverse viewpoints, denies citizens the chance to voice their concerns, and undermines the democratic principle of public participation in decision-making. This lack of transparency can lead to potential abuse of power and misuse of ordinances by the ruling party, jeopardizing good governance and undermining public trust in the democratic system. The undue use of ordinance-making power can also be seen as a display of executive overreach. In a parliamentary democracy like India, the executive and legislative branches are meant to be separate but interdependent. While ordinance-making power is granted to the executive, its misuse can be seen as an attempt to overshadow and bypass the role of the legislature. This not only undermines the balance of power but also weakens the effectiveness of parliamentary oversight and accountability. During UPA rule, in the 14th and 15th Lok Sabha, 60 per cent and 71 per cent bills were sent to the parliamentary committee respectively. This has come down to 27 per cent in NDA-1, and 12 per cent in the current NDA-2[vii]. The hurried passing of bills can lead to poorly drafted or flawed laws. This can undermine the effectiveness of legislation and the quality of laws enacted in India. It is important to recognize the value of parliamentary scrutiny which is crucial in upholding democratic principles and ensuring the careful consideration of laws in India.
Economic and Social Ramifications:
Economic Impacts:
The hasty passing of laws through ordinances can indeed have economic impacts on a country like India. Some potential consequences include:
1. Uncertainty: When laws are passed through ordinances without thorough deliberation and debate, it can create uncertainty for businesses and investors. Unclear or hastily implemented laws can lead to confusion regarding compliance requirements, resulting in a lack of confidence in the regulatory environment. This uncertainty can deter both domestic and foreign investment, hindering economic growth.
2. Market instability: Ordinances that are passed without proper consultation can disrupt market dynamics and create instability. Inconsistent or hastily implemented laws can lead to sudden changes in market conditions, affecting business operations and investor sentiment. This instability can make it difficult for businesses to plan and make long-term investments, potentially impacting economic growth and job creation.
3. Negative effects on investor sentiment: The frequent use of ordinances may give the impression that the government is not fully committed to the rule of law and democratic principles. This can have a negative impact on investor sentiment and confidence in the country’s political and regulatory environment. Investors may be hesitant to commit capital to a country where laws can be quickly and arbitrarily changed, as it introduces risks and uncertainties that can deter investment.
4. Hindered overall growth and development: The hasty passing of laws through ordinances can disrupt the overall development agenda of a country. Instead of considering diverse perspectives and engaging in thorough analysis, hastily implemented laws through ordinances may not adequately address the complex challenges facing the economy. This can hinder the effectiveness of policy measures and impede progress in areas such as infrastructure development, social welfare programs, and economic reforms.
Government can mitigate these economic impacts by prioritizing the regular legislative process, which allows for thorough deliberation, debate, and consultation.
Social Implications:
Bypassing the legislative process and relying heavily on ordinances can have significant social implications as follows:
1. Limited stakeholder engagement: When laws are passed through ordinances, it often limits the opportunity for stakeholders, including civil society organizations, experts, and the public, to participate in the policy formulation process and valuable input is often overlooked. The regular legislative process allows for public hearings, consultations, and debates where different perspectives can be considered.
2. Sidelining democratic principles: The legislative process is an essential component of a democratic system, as it ensures transparency, accountability, and an opportunity for public scrutiny. By bypassing this process and relying heavily on ordinances, it can create a sense of exclusion and undermine the democratic principles of participation and representation. In 2022, Legislative Assemblies met for average of 21 Days but passed over 500 Bills. Most of these Bills saw “little legislative scrutiny” with about 56% of the total 322 Bills being passed within a day of their introduction.[viii] This trend can erode public trust in the government and the overall democratic system.
3. Lack of awareness and understanding: The hasty passing of laws through ordinances can also lead to a lack of awareness and understanding among the public. When laws are passed without sufficient communication and education campaigns, it can be challenging for people to understand their rights, obligations, and the potential impact of the laws on their lives. This lack of awareness can hinder the public’s ability to engage effectively in the democratic process and make informed decisions often leading to protests and sometimes even riots.
4. Erosion of social cohesion: When laws are passed hastily without proper deliberation and debate, it can lead to division and polarization within society. The lack of consensus-building and dialogue can exacerbate existing social tensions and deepen societal divides.
To address these social implications, it is crucial for governments to conduct public consultations, engage with civil society organizations, and ensure transparency throughout the lawmaking process. By promoting inclusivity, transparency, and accountability, governments can foster a more participatory and democratic society.
Proposal for Reformation:
Limitation on ordinance powers:
There are several ways to advocate for constitutional reforms that limit the powers and usage of ordinance bills in India as follows:
1. Raising awareness: Educating the public about the implications of relying heavily on ordinance bills and the need for constitutional reforms. Utilizing social media, public forums, and other platforms to raise awareness about the issue.
2. Engaging with lawmakers: Reaching out to legislators, lawmakers, and political parties to express our concerns about the overuse of ordinance route urging them to support constitutional reforms that narrow the scope of ordinance powers and ensure they are used only in exceptional circumstances.
3. Forming coalitions: Creating or joining coalitions of organizations, activists, and individuals who are dedicated to promoting democratic principles and limiting the usage of ordinance bills. By pooling resources and expertise, coalitions can have a stronger influence on policymakers and help drive meaningful reforms.
4. Petition the government: Organizing and signing petitions that call for constitutional reforms to limit the powers and usage of ordinance bills. We can present these petitions to government representatives, either in person or through online campaigns, to show the level of public support for reform.
Strengthening parliamentary scrutiny:
One way to strengthen parliamentary scrutiny and reduce the unnecessary passage of ordinance bills in India is by implementing the following measures:
1. Increasing parliamentary sessions: There is need for more regular and frequent parliamentary sessions so that lawmakers have more time to discuss and deliberate on proposed bills, reducing the need for resorting to ordinances.
2. Enhanced committee system: Pushing for a more robust committee system within the parliament. Committees play a crucial role in evaluating bills, conducting detailed scrutiny, and seeking expert opinions. By strengthening the committee system, lawmakers can thoroughly examine proposed legislation, reviewing the justifications for issuing ordinances, assessing their compliance with constitutional principles, and making recommendations for amendments or modifications. It will make it less likely to be passed in the form of an ordinance.
3. Deliberative discussions: Encouraging meaningful and in-depth discussions in the legislature on proposed bills. Promoting an environment that allows for thorough debates, including examining various viewpoints, considering stakeholder input, and allowing for amendments. This will help ensure that bills are thoroughly examined, reducing the need for ordinances.
4. Transparency and public consultation: Increased transparency in the legislative process can be achieved by making bills and their associated documents easily accessible to the public, providing opportunities for public consultation, and soliciting feedback from relevant stakeholders.
Promoting public participation:
In India, promoting public participation in decision-making processes can offer several potential benefits:
1. Democratic legitimacy: Involving the public in the decision-making process enhances democratic legitimacy. It ensures that policies and laws are not imposed without considering the diverse perspectives and needs of the citizens and are in their best interests.
2. Informed decision-making: Public participation can help policymakers and lawmakers make more informed decisions as the government can tap into the collective wisdom of the people and gather diverse perspectives from different sectors of society. They can identify potential flaws, unintended consequences, or alternative policy options that may not have been apparent otherwise. This can lead to more effective and equitable policy outcomes.
3. Transparency and accountability: Engaging the public in decision-making processes promotes transparency and accountability. When the public is involved, decision-makers are more likely to be accountable for their actions and decisions. This can help prevent arbitrary decision-making and increase public trust in the government.
4. Enhanced public trust and satisfaction: When people have the opportunity to participate in decision-making, they feel a sense of ownership and involvement in the process. This can foster trust in government institutions and increase public satisfaction with the decisions made. It can also help address concerns and prevent conflicts that may arise from decisions perceived as top-down or arbitrary.
Conclusion:
In conclusion, the frequent and unnecessary passing of ordinance bills by the Indian Parliament raises substantial concern regarding the erosion of democratic principles, legislative autonomy, and public participation in the governance process. The overemphasis on executive power undermines the importance of parliamentary scrutiny and potentially leads to adverse economic and social consequences. Reformation of the current system, including limitations on the usage of ordinance bills and strengthening parliamentary scrutiny, is vital to restore the balance of power and ensure effective democratic governance in India. It is imperative that measures are put in place to ensure the responsible and judicious use of ordinance-making power, promoting a more inclusive and deliberative decision-making process in India.
[i] Article 123 in The Constitution of India 1949
[ii] Article 213 in The Constitution of India
[iii] Parvathi Benu (Updated June 14,2023) “Numbers drop. Govt’s reliance on ordinances on a decline since 2019”, Business Line.
Available at:
https://www.thehindubusinessline.com/data-stories/data-focus/govts-reliance-on-ordinances-on-a-decline-since-2019/article66964847.ece (Accessed: 10 September, 2023)
[iv] Saubhadra Chatterji (Apr 14, 2021) “NDA govt pushes more ordinances than UPA in 10 years”, Hindustan times.
Available at: https://www.hindustantimes.com/india-news/nda-govt-pushes-more-ordinances-than-upa-in-10-yrs-101618255988192-amp.html (Accessed on 10 September, 2023)
[v] Karishma Pranav Bhavsar (08 August, 2023) “Delhi Ordinance Bill passed in Rajya Sabha; here’s what happens next”, Livemint.
Available at:
https://www.livemint.com/politics/news/delhi-ordinance-bill-passed-in-rajya-sabha-heres-what-happens-next/amp-11691456979452.html (Accessed on 10 September, 2023)
[vi] Sayantani Biswas (11 August, 2023) “What was my crime?’: AAP’s Raghav Chadha on being suspended from Rajya Sabha”, Livemint.
Available at:
(Accessed on 11 September, 2023)
[vii] Himanshu Rewar (25 August, 2021) “Increasing ordinances, decreasing Parliament time – How BJP is making legislature irrelevant”, The Print.
Available at:
[viii] (June 01, 2023) “State Assemblies met for average 21 days in 2022”, The Hindu.
Available at:
https://www.thehindu.com/news/national/state-assemblies-met-for-average-21-days-in-2022-report/article66919318.ece/amp/ (Accessed on 15 September, 2023)
Author: Janhvi Tripathi
Juris Centre 