In 2017, a seven-judge Constitution bench of the Supreme Court in Krishna Kumar Singh vs State of Bihar criticised the abuse of ordinances, or laws promulgated by the President or state governor on the advice of the cabinet. The misuse of the instrument, the court said, was undermining both Parliament and state legislatures. Ordinances can be promulgated only when the legislature is not in session. But to do so, the court emphasised, the president or governor must be satisfied that it is “imperative due to an emergent situation”.
Despite this clear advice from the Supreme Court, the Bharatiya Janata Party government does not seem in the least bothered about abusing the instrument to advance its policies. On February 28, the Cabinet cleared five ordinances, with little indication about what “emergent situation” had forced the Centre to do so.
In terms of their implications, the five ordinances were a mixed bag. The most important of these was an amendment to the Aadhaar Act, to allow individuals to voluntarily use Aadhaar, the 12-digit identification document, as identity proof when dealing with private entities such as banks, telecom companies and financial technology firms.
When the Supreme Court said in 2017 that there must be pressing circumstances for the government to decide to approve an ordinance, it was attempting to reaffirm the significant role the legislature has in Indian democracy. After all, law-making is the primary function of the people’s representatives. If the governments use ordinances indiscriminately, this would mock the very existence of the legislature and create a parallel lawmaking authority.
That is exactly what the Bharatiya Janata Party-led government did when it chose not to use the Budget session of Parliament to move crucial amendments to the Aadhaar Act but later had an ordinance promulgated to achieve its objectives.
Though the court held that the decision of the President or governor to approve these ordinances was subject to judicial review, the people holding these offices in recent years have rarely raised questions about the use of the mechanism. This has rendered redundant an important constitutional check on the ordinance process.
The government’s behaviour gives cause for worry. While it may achieve its short-term goals by promulgating ordinances, this strategy profoundly alters the constitutional balance between the executive and the legislature.
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