‘The Ordinance Challenge’ to Rule of Law

The Winter Session of Parliament is set to begin on 29 November, 2021. 

Just two weeks ahead of the schedule, the Union Government has promulgated two ordinances to extend the tenure of the directors of Central Bureau of Investigation (CBI) and Enforcement Directorate (ED). The opposition leaders have claimed that this move of the Government undermines the authority of Parliament. As controversy looms large, it is worth examining the intent, means and the outcome of this executive action.

The President of India is empowered to promulgate an ordinance when Parliament is not in session through the provision of Article 123 of Indian Constitution. Nonetheless, Article 123 is subject to the condition that there should exist a circumstance in the country that makes it necessary for the President to take immediate action. However, the expiring tenure of CBI, ED directors offers no justification for an extraordinary situation that warrants urgent intervention.

Tainting the image of integrity and impartiality

Of late, the Governments in non-BJP ruled states have been accusing the Centre for misusing CBI and ED to target the adversaries of BJP. They allege that the NDA Government has been using such independent institutions as a tool to silence the opposition. Now that the tenure of its directors is extended until 2022, the Union Government has sent a clear message to the officers that their career prospects can be manipulated at the convenience of Executive. In other words, those officers who stand by the whims of their political masters have a better chance in the organisation. Such a trend taints the image of integrity and impartiality of India’s independent investigative organisations.

When government is obdurate; procedures turn out as mere means to goal

While examining the past six sessions of 17th Lok Sabha, more number of legislators are found to be filing disapproval motions against Government ordinances. During NDA I and II, the disapproval motions against those ordinances when introduced in the Parliament within six weeks of an ensuing session, have been wholly rejected due to the overwhelming majority enjoyed by the ruling dispensation. The scope for discussion is limited due to sensitive allocation of time. Fewer MPs get the opportunity to speak out their concerns in the house floor when concerned Ministers remain absent for longer time during discussions. In other words, the parliamentary procedures and conventions have become mere means to achieve the aims of ruling Party. The Government spends too little time for the democratic niceties. They neither exhibit the willingness to listen to dissenting voices nor give them a space in the public discourse. That itself is against the spirit of democracy.

The outcome is predetermined

Either an ordinance or an ordinary Bill, when introduced in the Parliament, becomes an Act by the virtue of the blessing of ruling Party. The scope for revision and refinement is nil. In such a scenario, the opposition is rendered irrelevant, not due to lack of legitimacy, but the tenacity of the government to use its power to suppress dissenting voices. The unwillingness to listen to the opposition or to let them act in the interests of the people, will ultimately contribute to eroding the legitimacy of the state apparatus itself.

An effective alternative to safeguard the interests of the opposition and the minority is the intervention of the Supreme Court of Judicature. The decision of the President in promulgating the ordinance is justiciable on the ground of mala fide.