'Ordinance Raj': Why Modi govt is playing a high-risk game

But it is its decisions in late December to pass three crucial ordinances, with respect to tweaking the land act, increasing FDI in insurance and facilitating the coal auction, which could set it up on a collision course with opposition parties.

Article 123 of the Constitution allows the government to recommend the President to pass an ordinance if Parliament is in recess and to meet emergent needs.

But increasingly, the government is coming under attack for creating what critics call the “Ordinance Raj”, who accuse the government of bypassing Parliament’s lawmaking powers, only because it is in a minority in the Rajya Sabha.

As a recent editorial in The Hindu puts it: “It is not one to be resorted to merely because the government of the day lacks a majority in the Upper House or is unable to break a deadlock in Parliament.”

It further points out that while the government can possibly justify the need for the coal ordinance (the Supreme Court had cancelled allocation of mines with a March 31 deadline, before which they had to be auctioned and handed over to new owners), it may find it difficult to do so in the case of the land act.

The decision of the president to question the urgency to amend the land act – a president usually only rubber stamps the government’s decisions (the president returning an ordinance has only happened a couple of times in history) – could be the start of a plethora of troubles for the Modi government.

For one, any ordinance has to be approved by the Parliament within six weeks of its re-convening.

But the Congress, the architect of the 2013 law which the ordinance amends, has made it clear it would fight tooth and nail to oppose the move.

Then, there is the question of the appropriateness of the government’s decision to use its executive powers to create an amendment it failed to have passed in Parliament.

As Supreme Court lawyer and Constitutional expert Rajeev Dhawan told the Huffington Post: “This kind of statute cannot be the subject matter of an ordinance. It has to be placed before Parliament no matter how rowdy parliament is. It requires discussion.”

If Parliament fails to approve an ordinance with six weeks for its meeting, the government has two alternatives to keep it from lapsing.

One, convene a joint session of Parliament (where the BJP is close to a majority) and push through the bills, a rarely-exercised option that the government is mulling using, according to the Times of India.

But for the government to call a joint session, one house of the Parliament has to reject a bill the other has passed. And there is no reason why opposition parties in the Rajya Sabha (where they dominate) will, as they did during the Winter Session, create enough disturbances to not allow tabling of bills, eliminating the possibility of their rejection.

Two, the government could also continue to re-promulgate fresh ordinances in order to increase the law’s shelf life – for instance, the previous government re-promulgated the Sebi Ordinance twice and the Securities Laws Ordinance thrice to keep it afloat, before lawmakers could vote on it.

But such a move could not just provide fresh firepower to the opposition to attack Modi’s “ordinance raj”.

Further, as SC advocate Dhawan points out, the government could be on a sticky wicket should someone decide to approach the court, guided by the judgment in the Wadhva case.

In the Wadhva vs State of Bihar case, it was argued that ordinances can be used only in exception circumstances and not as a substitute for the lawmaking power of the legislative.

In the case, the court strongly criticized the state government’s tendency to continuing re-promulgating ordinances instead of presenting it to the state assembly.