NDA takes the ordinance route: Narendra Modi regime outstrips UPA's pace but lags behind Nehru, Indira

In July 2014, Vice-President of India Venkaiah Naidu, who was the then parliamentary affairs minister, said that in ten years (between 2004-2014) when the Congress-led United Progressive Alliance was in power, it promulgated 61 ordinances. This statement has repeatedly been used as an explanation by the current BJP-led NDA regime every time they take the ordinance route.

 NDA takes the ordinance route: Narendra Modi regime outstrips UPAs pace but lags behind Nehru, Indira

File image of Parliament. PTI

The latest such instance was when President Ram Nath Kovind signed the ordinance banning the practice of triple talaq and making it a penal offence. Union Law Minister Ravi Shankar Prasad said that there was an "overpowering urgency" to bring the measure as instances of this mode of divorce continued unabated despite the Supreme Court striking it down.

According to the ordinance, giving instant triple talaq has been made illegal and void, and will attract a jail term of three years for the husband. Seeking to allay fears that the law could be misused, the government has included certain safeguards such as adding a provision of bail for the accused before trial.

These amendments were cleared by the Cabinet on 29 August. "There was an overpowering urgency and a compelling necessity to bring the ordinance as the practice continued unabated despite the Supreme Court order last year," Prasad told a press conference. While the law makes instant triple talaq a "non-bailable" offence, an accused can approach a magistrate even before trial to seek bail. In a non-bailable offence, bail cannot be granted by police at the police station itself.

Read the key features of the ordinance here

BJP's ordinance route

In the year after it assumed power, the Modi government promulgated nine ordinances, PRS Legislative Research reported. The list of ordinances include: The ordinance to amend the land acquisition Act and the ordinance to allow foreign direct investment in insurance companies to be increased to 49 percent of equity (up from 26 percent).

One of the major reasons for the government issuing ordinances is because the NDA does not enjoy the same majority in Rajya Sabha. Low numbers are a hurdle as disruption by MPs in Rajya Sabha did not allow the House to operate. The BJP has only 45 out of the 250 MPs that comprise the Rajya Sabha. Without Opposition support, it was a herculean task for the BJP to pass any legislation in the Upper House of Parliament. Which is where the ordinance route comes in play.

What is an ordinance?

Ordinances are temporary laws which can be issued by the president when Parliament is not in session. The Indian system allows the Executive to pass emergency ordinances without having to get a majority in Parliament. Ordinances are issued by the president based on the advice of the Union Cabinet. The president has been empowered to promulgate ordinances based on the advice of the central government under Article 123 of the Constitution. This legislative power is available to the president only when either of the two Houses of Parliament is not in session to enact laws.

Ordinances promulgated since 1952. Image from PRS Legislative Research

Ordinances promulgated since 1952. Image from PRS Legislative Research

The purpose of ordinances is to allow governments to take immediate legislative action if circumstances make it necessary to do so at a time when Parliament is not in session. The legislation stands for six weeks from the start of the next Parliament. If it isn’t voted onto the permanent statute within that time, the ordinance lapses, but can be reissued through a so-called repromulgation. Repromulgation of ordinances raises questions about the legislative authority of the Parliament as the highest law making body.

Currently, the maximum duration of six months the ordinance will be in effect will also give the BJP ample time to campaign on this legislative 'achievement', despite the uncertainty of winning approval for the law when Parliament meets for the Winter Session. However, ordinances can also be used to get around the opposition the government might be facing in Parliament. "If the government decides to do that, it is in a way putting to test the basic tenets of democracy," PRS noted.

Ordinances passed by Modi government since 2014

In five years under the UPA-II headed by former prime minister Manmohan Singh, 25 ordinances were promulgated. The Manmohan Singh government of UPA-I (2004-2009) issued 36 ordinances. It averaged six ordinances a year in its 10-year term. In October 2016, after promulgation of the Ordinance to amend the Enemy Property Act (Eviction of Unauthorised Occupants Act) of 1971, the number of ordinances promulgated under the NDA government headed by Modi was 22.

According to a report in The Hindu, after taking charge in 2014, the Modi government recommended two ordinances at the very first Cabinet meeting. One was an ordinance to amend the Telecom Regulatory Authority of India (TRAI) Act to facilitate Nripendra Mishra take over as Principal Secretary to the Prime Minister, and the other to amend the Andhra Pradesh Reorganisation Act for transfer of a cluster of villages for the Polavaram project. Both were issued on 28 May, 2014. These aside, the government issued five ordinances in 2014, including the one to amend the Land Acquisition law of 2013. The ordinance envisaged procuring land for industrial corridors, rural infrastructure, defence and housing.

In 2015, 10 ordinances were promulgated, including the one to amend land law which was issued twice on 3 April and 30 May respectively. The other ordinances issued in 2015 included the one to amend the Citizenship Act to merge Persons of Indian Origin (PIO) and Overseas Citizenship of India (OCI) schemes, by which PIOs will also get life-long Indian visas.

Another ordinance was aimed at amending the Motor Vehicles Act to bring e-carts and e-rickshaws under the ambit of the law.

Ordinance to amend the Enemy Property Act was promulgated twice in 2016. It sought to amend a 48-year-old law to guard against claims of succession or transfer of properties left by people who migrated to Pakistan and China after the wars.

After promulgating the ordinance allowing the foreign direct investment in insurance companies to be increased to 49 percent of equity, Finance Minister Arun Jaitley said: "The ordinance demonstrates the firm commitment and determination of this government to reform. It also announces to the rest of the world, including investors, that this country can no longer wait even if one of the Houses of Parliament waits indefinitely to take up its agenda." Jaitley further added that "already there is too much delay, which is why there is urgency."

Records show that former prime minister Jawaharlal Nehru cleared 70 ordinances from 1952 to 1964. Indira Gandhi issued 77 ordinances from 1971 to 1977. Rajiv Gandhi issued 35 ordinances in five years. PV Narasimha Rao's Congress government issued 77 ordinances during its five-year term. The United Front government, during its 1996-1998 term under two prime ministers, HD Deve Gowda and IK Gujral, issued a record 77 ordinances. The NDA government headed by the BJP's Atal Bihari Vajpayee issued 58 ordinances between 1998 and 2004.

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Updated Date: Sep 20, 2018 16:21:07 IST