The New Leviathan

Times of India, February 20, 2015

If Parliament remains stalled, an overweening executive will take over functions of the legislature

Parliament?s upcoming budget session will be the first since President Pranab Mukherjee?s stern observations to government to refrain from incessant ordinance promulgation. Issuance of nine ordinances in less than nine months of the NDA government has led to wide questioning of its motivations in using ordinances as a default device for lawmaking.

Neither is the executive promulgating ordinances, nor the frequency of such ordinances a new phenomenon. More telling is the changing nature of lawmaking and parliamentary functioning in the recent past that has facilitated such executive action.

Of late, Parliament has shown marked reluctance in exercising its sovereignty to check and balance government which is directly accountable to it. When it has done so, this has often been through what President Pranab termed ?disruption ? [by] a noisy minority? that has seldom served any positive accountability function. A combination of these two factors during the UPA-II government resulted in widely perceived policy paralysis. In the case of the present NDA government, it portends the beginnings of a change in the nature of separation of powers in India, from a Parliament-led democracy to an incipient bureaucratic state.

The linkage between ordinances and disruptions in Parliament in recent years is apparent. If data from the last five years is analysed, Parliament logged its lowest number of working hours from January 2013 to March 2014. In this time, 14 ordinances were passed, more than the total of ordinances passed in previous sessions from 2009. This is not surprising ? governance demands continuous action and if Parliament is obstructionist, then the ordinance route will be increasingly resorted to.

Questions must be raised about whether circumstances that require ?immediate action?, the standard required for promulgating ordinances under Article 123 of the Constitution, exist in each case. However it must be recognised that but for Parliament?s non-functioning, ordinances would have been stripped of their key legitimating factor.

Incessant ordinance promulgation is as much a reflection of a government in a hurry as it is the most overt symptom of an insidious process of parliamentary retreat from its core function of lawmaking. A typical example of such retreat is provided by the commencement clause in every statute. In India, every new law, almost without exception, has a standard clause which allows the executive to notify the date on which the law will come into operation (?appointed day device?).

This is contrary to the default rule in the common law world, where commencement of statutes is the prerogative of Parliament and unless circumstances require otherwise, it happens on the date of royal assent. In the early decades of Independence, this default rule was largely followed in India, including in key labour legislations such as the Employees? Provident Fund and Miscellaneous Provisions Act, 1952 and the Payment of Bonus Act, 1965, despite these having significant financial ramifications.

There were legislations however where this rule was departed from ? the Factories Act, 1948 which received presidential assent on September 23, 1948 provided that it would come into force on April 1, 1949; similarly, the appointed day device was used in the Banking Regulation Act, 1949, the Indian Medical Council Act, 1956 and several other statutes. Select use of the appointed day device demonstrated that lawmakers applied their minds to which statutes required an appointed day for notification and which did not.

On the contrary, in the last two decades, the commencement clause has used the appointed day device as the default norm. In certain cases, this might be necessary. However for the device to be used in nearly all statutes, irrespective of whether it has any administrative or financial ramifications that require it, demonstrates a quiescent Parliament that is presiding over its own obsolescence in bringing laws into effect.

A similar message emerges from the pervasiveness of delegated legislation in recent years. A mere glance at recent statutes shows large-scale increase of provisions that facilitate rulemaking by the executive instead of clear statutory provisions.

This is not to suggest that Parliament allows a carte blanche to government in framing rules in all matters. The parliamentary standing committee on finance notably refused to clear the National Identification Authority of India Bill setting up the Unique Identification Authority of India (UIDAI). It is however a reflection of the diminishing importance of Parliament and the growing authority of the executive that UIDAI continues functioning and Aadhaar cards continue to be distributed, with a bill still pending in Parliament authorising it to do so.

In this context of parliamentary retreat from its core province of lawmaking, while it is tempting to accuse the government of bypassing norms of parliamentary democracy in pushing through ordinances, the boot might equally be on the other foot. Governance by ordinance is symptomatic of the changing nature of separation of powers in India, with an alternately disruptive and pliant Parliament playing into the hands of an assertive executive.

A likely result will be the creeping rise of a bureaucratic state which, as history teaches us, privileges efficiency over accountability, stealth over transparency, decisiveness over debate. If such a state were to become visibly discernible in India, Parliament will not only be its key casualty, it will also be its chief cause.

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