Opinion

In 'Digital India', is it time to end Raj-era rules that allow governments to push ordinances?

Governments often misuse the power that enables them to push through legislation without Parliamentary debate.

On the first working day of the new year, a seven-judge bench of the Supreme Court, in a landmark judgement, said that repromulgation of ordinances was impermissible under the Constitution and that the effects of a lapsed ordinance would continue only if they were physically impossible to reverse or if were manifestly in the public interest to let them remain.

While the Supreme Court decision pertains only to the technicalities of ordinance-making powers, given the frequent controversies relating to the use and abuse of this power, there exists a case for abolishing it entirely.

An ordinance is a decree that can be issued by the president in cases where urgent or immediate action needs to be taken but Parliament is not in session. After an ordinance is promulgated, it has the same effect as any other law until the next Parliament session is convened. The ordinance then has to be placed before the legislature, which can pass an identical bill to replace it. If this does not happen within six weeks of Parliament reconvening, the ordinance lapses. Similarly, state governors can also promulgate ordinances when the state assembly is not in session.

Under the Indian Constitution, there is a strict separation of powers between the three arms of the State: the legislature, the executive and the judiciary. The legislature, which consists of elected representatives in Parliament and state assemblies, enacts laws. The executive – the council of ministers at the Centre and in each state – is tasked with implementing these laws while the judiciary adjudicates the enforcement actions under the laws. Neither organ can ordinarily perform the function of the other.

Ordinance making powers conferred upon the president and the state governor are thus unique because they depart from the usual separation of powers. The most important restriction on the use of this power is that circumstances must exist that render it necessary for the government to take immediate action when the legislature is not in session.

Abuse of power

However, over the years, the power to promulgate ordinances has been consistently abused. On many occasions, it has been used for the sake of political convenience even when there is no need for immediate action. For instance, Indira Gandhi in 1969 passed the bank nationalisation ordinance, transferring the ownership of 14 commercial banks to the state, just two days before the Parliament was to convene.

More recently, Prime Minister Narendra Modi’s government refused a discussion on demonetisation in Parliament as it disagreed with the Opposition’s terms on the discussion and failed to introduce any bill to give the move to ban high-value currency notes statutory backing. However, on December 28, a fortnight after the winter session of Parliament ended, an ordinance was promulgated giving legislative backing to the exercise.

There are many more such examples. In 2003, under the Congress-led United Progressive Alliance government, the National Tax Tribunal Ordinance was promulgated. However, that there was no need for immediate action became clear when, despite the ordinance, the tribunal had not been made operational by the time Parliament considered it, a few months later. In 2014,an ordinance was also promulgated for the purportedly urgent matter of ensuring that a newly elected prime minister Modi gets the principal secretary of his choice.

Raj-era Act

The origin of the ordinance-making powers can be traced back the colonial era, and more precisely, to the Government of India Act, 1935. Section 42 of this Act stated that the governor general could issue ordinances while the central legislature was in recess. When independent India’s Constitution was being drafted, some members of the Constituent Assembly such as Hriday Nath Kunzru, HV Kamath and Professor KT Shah objected to the inclusion of ordinance-making powers as being anti-democratic with a high likelihood of abuse. Dr BR Ambedkar, however, saw it as a necessary evil and justified its inclusion by stating:

“My submission to the house is that it is not difficult to imagine cases where the powers conferred by the ordinary law existing at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise. What is the executive to do? The executive has got a new situation arisen, which it must deal with Exhypothesi it has not got the power to deal with that in the existing code of law. The emergency must be dealt with, and it seems to me that the only solution is to confer upon the President the Power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because, again ex hypothesi, the legislature is not in session.”

Thus, the idea underlying the ordinance-making power was that when a law needs to be enacted urgently, it should be possible to do so. In the late 1940s, when the Constitution was drafted, it would have been impossible to call an emergency session of Parliament at short notice because in those days, many MPs, especially those from the South and the Northeast, would have needed to undertake long journeys by various means of transport to reach New Delhi for the session.

However, in the 21st century, this is no longer the case. It would be entirely practical to hold an emergency session of Parliament or Legislative Assembly, in which MPs or legislators participate through video conferencing and cast their votes online or on an app-based platform. If need be, a special videoconferencing centre could be set up in each district for such emergency sessions.

Similar provisions already exist in company law. Directors are allowed to participate in board meetings through video conferencing and shareholders can cast their votes online without physically attending the meetings where the issue is taken up for voting.

If such systems are implemented in the legislative process, ordinance-making powers could be repealed, putting to rest all the concerns and controversies surrounding them and replacing them with emergency digital Parliament sessions. If the government truly wants to usher in a Digital India, this would be a good step in that direction.

Sagar Godbole is an associate at Trilegal. Views expressed here are personal.

We welcome your comments at letters@scroll.in.
Sponsored Content BY 

India’s urban water crisis calls for an integrated approach

We need solutions that address different aspects of the water eco-system and involve the collective participation of citizens and other stake-holders.

According to a UN report, around 1.2 billion people, or almost one fifth of the world’s population, live in areas where water is physically scarce and another 1.6 billion people, or nearly one quarter of the world’s population, face economic water shortage. They lack basic access to water. The criticality of the water situation across the world has in fact given rise to speculations over water wars becoming a distinct possibility in the future. In India the problem is compounded, given the rising population and urbanization. The Asian Development Bank has forecast that by 2030, India will have a water deficit of 50%.

Water challenges in urban India

For urban India, the situation is critical. In 2015, about 377 million Indians lived in urban areas and by 2030, the urban population is expected to rise to 590 million. Already, according to the National Sample Survey, only 47% of urban households have individual water connections and about 40% to 50% of water is reportedly lost in distribution systems due to various reasons. Further, as per the 2011 census, only 32.7% of urban Indian households are connected to a piped sewerage system.

Any comprehensive solution to address the water problem in urban India needs to take into account the specific challenges around water management and distribution:

Pressure on water sources: Rising demand on water means rising pressure on water sources, especially in cities. In a city like Mumbai for example, 3,750 Million Litres per Day (MLD) of water, including water for commercial and industrial use, is available, whereas 4,500 MLD is needed. The primary sources of water for cities like Mumbai are lakes created by dams across rivers near the city. Distributing the available water means providing 386,971 connections to the city’s roughly 13 million residents. When distribution becomes challenging, the workaround is to tap ground water. According to a study by the Centre for Science and Environment, 48% of urban water supply in India comes from ground water. Ground water exploitation for commercial and domestic use in most cities is leading to reduction in ground water level.

Distribution and water loss issues: Distribution challenges, such as water loss due to theft, pilferage, leaky pipes and faulty meter readings, result in unequal and unregulated distribution of water. In New Delhi, for example, water distribution loss was reported to be about 40% as per a study. In Mumbai, where most residents get only 2-5 hours of water supply per day, the non-revenue water loss is about 27% of the overall water supply. This strains the municipal body’s budget and impacts the improvement of distribution infrastructure. Factors such as difficult terrain and legal issues over buildings also affect water supply to many parts. According to a study, only 5% of piped water reaches slum areas in 42 Indian cities, including New Delhi. A 2011 study also found that 95% of households in slum areas in Mumbai’s Kaula Bunder district, in some seasons, use less than the WHO-recommended minimum of 50 litres per capita per day.

Water pollution and contamination: In India, almost 400,000 children die every year of diarrhea, primarily due to contaminated water. According to a 2017 report, 630 million people in the South East Asian countries, including India, use faeces-contaminated drinking water source, becoming susceptible to a range of diseases. Industrial waste is also a major cause for water contamination, particularly antibiotic ingredients released into rivers and soils by pharma companies. A Guardian report talks about pollution from drug companies, particularly those in India and China, resulting in the creation of drug-resistant superbugs. The report cites a study which indicates that by 2050, the total death toll worldwide due to infection by drug resistant bacteria could reach 10 million people.

A holistic approach to tackling water challenges

Addressing these challenges and improving access to clean water for all needs a combination of short-term and medium-term solutions. It also means involving the community and various stakeholders in implementing the solutions. This is the crux of the recommendations put forth by BASF.

The proposed solutions, based on a study of water issues in cities such as Mumbai, take into account different aspects of water management and distribution. Backed by a close understanding of the cost implications, they can make a difference in tackling urban water challenges. These solutions include:

Recycling and harvesting: Raw sewage water which is dumped into oceans damages the coastal eco-system. Instead, this could be used as a cheaper alternative to fresh water for industrial purposes. According to a 2011 World Bank report, 13% of total freshwater withdrawal in India is for industrial use. What’s more, the industrial demand for water is expected to grow at a rate of 4.2% per year till 2025. Much of this demand can be met by recycling and treating sewage water. In Mumbai for example, 3000 MLD of sewage water is released, almost 80% of fresh water availability. This can be purified and utilised for industrial needs. An example of recycled sewage water being used for industrial purpose is the 30 MLD waste water treatment facility at Gandhinagar and Anjar in Gujarat set up by Welspun India Ltd.

Another example is the proposal by Navi Mumbai Municipal Corporation (NMMC) to recycle and reclaim sewage water treated at its existing facilities to meet the secondary purposes of both industries and residential complexes. In fact, residential complexes can similarly recycle and re-use their waste water for secondary purposes such as gardening.

Also, alternative rain water harvesting methods such as harvesting rain water from concrete surfaces using porous concrete can be used to supplement roof-top rain water harvesting, to help replenish ground water.

Community initiatives to supplement regular water supply: Initiatives such as community water storage and decentralised treatment facilities, including elevated water towers or reservoirs and water ATMs, based on a realistic understanding of the costs involved, can help support the city’s water distribution. Water towers or elevated reservoirs with onsite filters can also help optimise the space available for water distribution in congested cities. Water ATMs, which are automated water dispensing units that can be accessed with a smart card or an app, can ensure metered supply of safe water.

Testing and purification: With water contamination being a big challenge, the adoption of affordable and reliable multi-household water filter systems which are electricity free and easy to use can help, to some extent, access to safe drinking water at a domestic level. Also, the use of household water testing kits and the installation of water quality sensors on pipes, that send out alerts on water contamination, can create awareness of water contamination and drive suitable preventive steps.

Public awareness and use of technology: Public awareness campaigns, tax incentives for water conservation and the use of technology interfaces can also go a long way in addressing the water problem. For example, measures such as water credits can be introduced with tax benefits as incentives for efficient use and recycling of water. Similarly, government water apps, like that of the Municipal Corporation of Greater Mumbai, can be used to spread tips on water saving, report leakage or send updates on water quality.

Collaborative approach: Finally, a collaborative approach like the adoption of a public-private partnership model for water projects can help. There are already examples of best practices here. For example, in Netherlands, water companies are incorporated as private companies, with the local and national governments being majority shareholders. Involving citizens through social business models for decentralised water supply, treatment or storage installations like water ATMs, as also the appointment of water guardians who can report on various aspects of water supply and usage can help in efficient water management. Grass-root level organizations could be partnered with for programmes to spread awareness on water safety and conservation.

For BASF, the proposed solutions are an extension of their close engagement with developing water management and water treatment solutions. The products developed specially for waste and drinking water treatment, such as Zetag® ULTRA and Magnafloc® LT, focus on ensuring sustainability, efficiency and cost effectiveness in the water and sludge treatment process.

BASF is also associated with operations of Reliance Industries’ desalination plant at Jamnagar in Gujarat.The thermal plant is designed to deliver up to 170,000 cubic meters of processed water per day. The use of inge® ultrafiltration technologies allows a continuous delivery of pre-filtered water at a consistent high-quality level, while the dosage of the Sokalan® PM 15 I protects the desalination plant from scaling. This combination of BASF’s expertise minimises the energy footprint of the plant and secures water supply independent of the seasonal fluctuations. To know more about BASF’s range of sustainable solutions and innovative chemical products for the water industry, see here.

This article was produced by the Scroll marketing team on behalf of BASF and not by the Scroll editorial team.