The easy way

Bihar made itself notorious in the 1970s and 1980s by legislating through ordinances. In some years it was found more laws were brought i...

Bihar made itself notorious in the 1970s and 1980s by legislating through ordinances. In some years it was found more laws were brought into force or kept in force by promulgating and repromulgating ordinances than were passed by the House which met regularly but rarely concluded any business.

A highly regarded study of the Bihar phenomenon by Professor D C Wadhwa was titled A fraud on the Constitution for good reason. Ordinances are permissible in extraordinary circumstances; they ought not to be and were never intended to be routine alternatives to passing Bills in legislatures.

Bihar8217;s Ordinance Raj8217; comes to mind because of the Union Cabinet8217;s decision to promulgate ordinances on the Companies Amendment Act and Patents Act and to repromulgate ordinances on Prasar Bharati and the Central Vigilance Commission, all major subjects. This occurs shortly after Ram Jethmalani announced that the Urban Land Ceiling Act was going to be abolished by ordinance. What are the extraordinary circumstances compelling the Union government to take a leaf out of Bihar8217;s book?

If each of these proposed ordinances are examined in turn, it is hard to find truly compelling reasons for going about things in this way and in no other. The government did indeed have a hard time getting business done in Parliament thanks to unruly Opposition tactics. True, it did have a full agenda of urgent legislative business and too little time to complete it.

But, on the whole, if anything is dysfunctional it is more likely to be found in the government8217;s Parliamentary affairs wing than anywhere else. For example, better time management and careful planning may have obviated the need to repromulgate the CVC ordinance. In the light of the contentiousness of some issues, there will be the uneasy feeling that the government is looking for short-cuts. Having indicated that the budget session would be advanced in order to pass the Patents Bill, there seems to be no real reason for giving up that plan.

The so-called dire consequences of breaching the commitment to the WTO would have strengthened the government8217;s arm during the debate. As for the ULCRA amendment, apart from Jethmalani8217;s stated eagerness to do away with ceilings, there is no overwhelming urgency which would justify an ordinance. In any case, contention and obstruction from within and without the ruling alliance is not going to disappear merely because an ordinance has been promulgated.

Sooner or later new legislation will have to pass the test of majority support in Parliament, unless the government intends to keep laws perpetually in force through the device of repromulgating ordinances as was the case in Bihar. Ordinances which lapse like the first one on patents tend to cause confusion and are more trouble than they are worth for the government and the economy.

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The government would be well advised to take a second look at its programme of ordinances and go ahead only in cases where that course is absolutely essential. It should also take the trouble to convince people why there was no other option. Promulgating ordinances is a bad habit and a difficult one to kick.

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