As the people of India have been faced with a Parliament that has been deliberately non-functioning, they have no choice left but to demand that the President promulgate ordinances to bring in laws on which there was a clear consensus
The demand for ordinances to be promulgated on consensus legislations such as the Grievance Redressal Bill, has to be seen in the context of the failure of the 15th Lok Sabha to function. In the midst of statements from some Opposition parties that the government should not promulgate ordinances, there is a persistent demand from some people’s movements and campaigns that consensus legislations should be promulgated as ordinances. One of the major reasons for using the ordinance provision of the Constitution with caution is to make sure the government does not use it to impose a law that Parliament may have disapproved of. The ordinance as a short route has therefore often been criticised, even by us for bypassing Parliament. In this case it does not. On the contrary, it takes already deliberated and examined Bills on which a consensus has been reached, but is marred by Parliament’s failure to legislate.Lapsed Bills as betrayal
There are no absolutes in procedure, so long as they do not violate laws, and the Constitution. According to the rule book, Bills pending that were initiated in the Lok Sabha have lapsed. The cost of the loss to human effort, money, and time especially in cases where there is broad agreement on the laws, is colossal. The passage of these laws would on the one hand have benefitted everyone, including the most marginalised, and on the other not wasted the efforts of parliamentary process: endless presentations in front of standing committees and hours spent on formulating and drafting and redrafting them.
The provision of Article 123 of the Constitution states that ordinances can be passed when Parliament is not in session and “circumstances exist which render it necessary for him (the President) to take immediate action.” We believe that when the people of India have been faced with a Parliament that has been deliberately non-functioning, they have no choice left but to demand that the government and President use these provisions to bring in laws on which there was a clear consensus. This demand is made in a context where Parliament has barely functioned for five years and met in its last special session essentially to adjourn. The contentious Telangana Bill, and a few other important Bills were passed with great difficulty; 68 Bills lapsed with the proroguing of the parliamentary session. The demand for ordinances is limited only to a few Bills. A coalition of citizens groups actually implored Parliament to at least pass those in which there was agreement. By not passing the Grievance Redressal law for example, every Indian citizen will continue to be frustrated by an unaccountable delivery system with no redress or recourse. Many of these concern life and livelihood issues such as food, water, health, education, etc.Not by choice
Interestingly, within this Parliament and outside, the Grievance Redressal law had the greatest support. It went through every process of consultation including full discussion in the Standing Committee which unanimously and strongly recommended immediate passage. All of Parliament included this as a part of the sense of the house resolution — a solemn assurance from Parliament that along with the Lokpal, a Citizen’s Charter and Grievance Redressal Bill would be passed with urgency. Continual pressure then led to passage of the Lokpal Act. Members across parties called upon the government to pass both the Whistleblower’s Protection Bill and Grievance Redressal law without which they pointed out that the passage of the Lokpal would be incomplete. Not passing these consensus Bills amounts to a betrayal of the people.
Parliament carries a solemn responsibility to carry out its mandate of making laws that are needed. The demand from the coalition was for a full-fledged legislation; not an ordinance. Seeking recourse to the exceptional route of the ordinance is not by choice.Not a permanent fiat
Why did Parliament fail to pass these laws? All through this last session, going from one party to the next, leaders expressed support and agreed that there was a pressing need for passage, while they blamed other parties for not cooperating. There was a definite sense that petty politics and political one-upmanship were holding the immediate legislative needs of the people to ransom. Day after day, with the clock ticking, the desperation of citizens’ groups mounted as it seemed clear that assurances outside, and behaviour on the floor of the house did not match. Years of work, discussion on every point — within and outside Parliament — Bills going back and forth between Parliament and the Government were all going to be lost. As a country, we were facing a completely unjustifiable legislative vacuum. In the last week of the final session of Parliament, the “coalition for passage of consensus laws” began to demand ordinances in the event that Parliament failed to carry out its promise.
Article 123 must be seen as a recourse open to people just as much as it is open to the government of the day. Therefore, to project this only in political terms as we approach an election is unfair to the justified demands of people waiting for legal recourse. Not passing a law in a matter like Grievance Redress is a huge loss to uncountable citizens, many lives and an entire generation.
While making this demand for an ordinance, one must also recognise that it is not a permanent executive fiat. In fact, even more than in a case of an executive decision which the government of the day is free to continue with or change, an ordinance is necessarily subject to parliamentary approval. If ordinances are promulgated, when the 16th Lok Sabha reconvenes, it will immediately have to examine them and ensure that the law is enacted or amended as per laid down parliamentary process. By promulgating an ordinance now, citizens could begin to use the provisions to access their entitlements, seek redress, and even point out possible shortcomings that the law might have. Those shortcomings could be removed by the 16th Lok Sabha.
The President has expressed anguish at the non-functioning of Parliament. Unfortunately, Parliament paid no heed to the appeal from him or anyone else. The President now has an opportunity to send a clear message that if Parliament fails to legislate, people will demand their right to legal remedies. It is now incumbent on the government and the President to meet that demand.
Passing an ordinance in this case does not subvert the parliamentary process. In an incremental process of building law and subordinate legislation, this would only be one tentative step forward. For the citizens’ right to the redress of their grievances, not having the ordinance would be six steps backwards.
Aruna Roy and Nikhil Dey are social activists