Alarmed by the mutiny of 1857, the British government had empowered the Governor-General, under the Indian Councils Act, 1861, to promulgate an ordinance for ensuring peace and good governance, when the legislature was not in session. In spite of such empowerment, the then viceroy had said: "I was almost staggered to find that I had the power to issue an edict, which could override the law of the land, and could not be discussed until I allowed it." The Constitution provides for the promulgation of an ordinance by the President when any matter calls for immediate action by the Executive, which otherwise could have been done by the legislature but for its absence (of not being in session).
The founders of democracy in India were generally united in the importance of democratic processes, and by and large, shunned ordinance-making powers. Leaders such as GV Mavalankar and Jawaharlal Nehru were fervently against the ordinance route to law making. The constitutional powers to promulgate ordinance have been examined by the Supreme Court.
In DC Wadhwa v/s the State of Bihar, the Supreme Court held the legislative powers of the executive to promulgate ordinances were to be used in exceptional circumstances and not as a substitute for the law-making powers of the legislature. Therefore, political propriety demands that a democratically elected government is expected not to resort to ordinance raj as it is tantamount to denigrating the authority of legislative bodies.
Starting from ordinance to appointing personal staff to providing for auctioning coal blocks cancelled by the Supreme Court and in between changes in FDI norms in insurance and diluting the Land Acquisition Act, the ease with which the Modi government is approving ordinance after ordinance, that too on matters of far-reaching socio-economic and political implications, is an indication of the ordinance raj by the government.
The ordinance to raise the FDI limit in the insurance sector to 49% from 26% was approved by the Cabinet just days after Parliament was adjourned. It is the same BJP that complained against the 'ordinance raj' during the 10 years of UPA rule.
Ironically, this was done by Arun Jaitley, who had criticised the UPA government's Food Security Ordinance as an abuse of legislative power. Then he raised the question: Why did the government not wait for legislative approval? His stance seems to have changed.
Rajnath Singh had criticised the decision of the UPA government to bring anti-graft ordinances as "anti-constitutional". What exactly has changed in a couple of months?
It is the job of the government and the prime minister to reach out to the Opposition and to establish a rapport with them. For that, the BJP will have to shed its politics of confrontation. Only the slogan of good governance will not do, we need it in its true spirit.
(Jaiveer Shergill is a Supreme Court lawyer and national media panelist of the Indian National Congress. The views expressed by the author are personal)