Before clearing ordinances, justify urgency: Law Ministry

Article 123 empowers the President to promulgate an ordinance when Parliament is in recess if circumstances warrant urgent legislative action.

New Delhi | Published: February 28, 2014 1:19:51 am

When the union Cabinet meets Friday to clear nine ordinances proposed by the UPA government, it will have to tackle an important caveat by the law ministry which has asked if the reasons offered by the administrative departments justify issuing ordinances days before general elections are due to be announced.

The legislative department, while clearing the draft ordinances, is learnt to have asked each administrative department to give “clear reasons” for the urgency behind promulgating these emergency laws.

The Cabinet, the law ministry is learnt to have advised, should take a final view on the ordinances only after considering whether the reason given by each administrative department justifies the exercise of power under Article 123 of the constitution. Article 123 empowers the President to promulgate an ordinance when Parliament is in recess if circumstances warrant urgent legislative action.

Questions have already been raised about the constitutionality and propriety of an outgoing government promulgating such a large number of ordinances less than a week before elections are announced. However, in a development that could leave the UPA government red-faced, the law ministry has also opposed the government’s move to issue an ordinance to exclude national security from the purview of the Whistleblowers Protection Bill, 2011, which was passed by the Rajya Sabha.

Sources told The Indian Express that the law ministry has told the government that an ordinance cannot be issued until the Bill receives the President’s assent and is notified. “How can an ordinance be issued amending the law which is yet to take effect? Technically, Whistleblowers Protection Bill, 2011, is a Bill until it receives the assent of the President and is notified. It will be unconstitutional to issue an ordinance to amend the law which is yet to take effect,” said a source.

The clumsy attempt by the UPA government to implement Congress vice president Rahul Gandhi’s public announcement on passing pending anti-corruption legislations could end up causing more embarrassment for the government. It now transpires that in its hurry to get the Whistleblowers Protection Bill, 2011 passed in the Rajya Sabha on the last day of Parliament, the government forgot to get some minor amendments cleared in in the Lok Sabha, which had passed the Bill on December 27, 2011. The end result: the Bill has technically not been passed by both houses of Parliament and cannot be notified although the government is learnt to have asked the law ministry to find a way out of the logjam.

“Since the Lok Sabha passed the Bill in 2011 and the Rajya Sabha passed it in 2014, the long title and enacting formula underwent a change and hence corresponding amendments, even though minor in nature, should have been sent to Lok Sabha and got approved by the MPs through voice vote. But this was not done. The long title is the last part of any proposed legislation which is put to vote. Now, the government doesn’t know what to do and is asking us to find a solution,” said a law ministry source.

Law Minister Kapil Sibal and Legislative Affairs Secretary P K Malhotra could not be reached for comment as both were said to be travelling. However, sources said the legislative department was looking at the option of dubbing the faux pas as a “patent error”, something that would give the power to the legislative department to correct the “mistake” on its own. But legal experts said the “mistake” can’t be passed off as a patent error and it could attract the charge of breach of privilege.

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