On Monday, 29 November, the Narendra Modi government's farm laws died an ignominious death with a hastily passed Repeal Bill.
The farm laws were passed as Acts of Parliament a year ago, though 'passed' is a presumptuous word to use here given the way they were bulldozed through both Houses, including a dubious voice vote in the Rajya Sabha.
However, their questionable history began even before the shambolic scenes in Parliament, when they were promulgated as ordinances in June 2020.
This is not to say that the procedure for promulgating an ordinance was not followed back then – it was. However, what was questionable was that these laws were passed as ordinances at all, given there was no urgency to pass them.
Despite some vague waffle about the pandemic, the Modi government never explained why it was so urgent to bring in the farm laws as ordinances. Especially when a Parliament session was coming up in just three months.
This is not surprising, though, given the way in which ordinances have been consistently misused by many governments over the years to ram through laws which they want to bring in for possible vested interests, and which they know will generate a lot of heat if properly debated in Parliament.
The ED & CBI Ordinance Row
The new ordinances used to extend the tenures of the Enforcement Directorate (ED) and Central Bureau of Investigation (CBI) directors are only the latest examples of this problem.
The new ordinances allow for the directors to be given multiple one-year extensions after they reach their retirement age, so as to give them tenures of upto five years.
The Modi government's ostensible logic is that this gives the directors of these important investigative agencies security of tenure, allowing them to do their job better. As of now, thanks to the Supreme Court, the directors of the ED and CBI have to get tenures of at least two years, so theoretically, ensuring an even greater security of tenure would be a good thing.
There is a debate to be had over whether this is really what the ordinances do since they don't actually guarantee an extended tenure but instead offer limited extensions based on the government's assessment of the director's performance.
But let us leave that debate for another time and give the government the benefit of the doubt. Let us assume that the ordinances are genuinely meant to ensure security of tenure, to let the directors do their job better, that the ordinances were therefore in the public interest.
What remains unclear is why these important legislative changes had to be brought in as ordinances.
Now you might ask, what's the big deal? What's the problem with passing an ordinance to bring in a law that is meant to do something in the public interest?
The problem is that India is supposed to be a parliamentary democracy. Which means that laws are supposed to be passed by Parliament or a state's Legislative Assembly (ie the Legislature), NOT the current government in power in the Centre or a state (ie the Executive).
An ordinance bypasses this fundamental feature of our democracy and allows a law to be put into force by the President or a Governor, who are of course acting on the aid and advice (ie the instructions) of the Executive.
Ok, you might say, but doesn't the Constitution itself allow the promulgation of ordinances?
Doesn't Article 123 of the Constitution specifically provide the President with the power to pass ordinances when Parliament is not in session?
Doesn't Article 213 of the Constitution specifically give a Governor the power to pass ordinances in a state when its Legislative Assembly (and Legislative Council, where applicable) isn't in session?
So what's the problem with the Modi government bringing in these two ordinances which they say are in the public interest, when Parliament was not in session?
The simple answer is because there was no reason to use this extraordinary power here.
Ordinances are not supposed to be used in the normal course of things. The wording of both Articles 123 and 213 specifically says that the President/Governor is supposed to use this power when it is believed "necessary" to take "immediate action".
Back on 23 May 1949, when the ordinance power was being debated in the Constituent Assembly, several members had raised concerns over the power to bring in ordinances.
Dr BR Ambedkar responded to their concerns by saying that this was meant to ensure the government could deal with a "situation which may suddenly and immediately arise". According to him, the power was to be exercised in an "emergency" when the regular process of law-making could not be resorted to.
In 1986, a Constitution Bench of the Supreme Court in the DC Wadhwa case took the same view, writing in their judgment:
"The power to promulgate an Ordinance is essentially a power to be used to meet an extra-ordinary situation and it cannot be allowed to be "perverted to serve political ends.""
What exactly was the 'extraordinary situation' on 15 November that required these ordinances to allow for extensions of the tenures of the ED and CBI directors? Why was 'immediate action' necessary, given a Parliamentary session was just two weeks away? What exactly was the 'emergency' that these ordinances were meant to address?
The simple truth is that there was no urgent need for the ordinances. There was literally nothing that was going to happen between 15 November and 29 November (when the current Winter Session of Parliament was scheduled to begin) that made for an emergency.
Except, of course, that the tenure of the director of the ED was set to end on 18 November 2021.
SK Mishra had become ED director on 19 November 2018, with a tenure set to end two years later in November 2020. Even though he would reach the regular superannuation age of 60 in May 2020, his term as ED director had to last beyond that in accordance with the rule first laid down by the Supreme Court and then codified in the CVC Act, that the tenure of an ED director has to be for at least two years.
Even though this two-year tenure already meant he was serving beyond the regular retirement age, the Modi government gave him an additional one-year extension last year, taking his tenure to 18 November 2021.
In September this year, the Supreme Court clarified that there was nothing wrong with this additional extension in a case which had been filed by the NGO Common Cause, alleging it was an abuse of power.
However, the apex court said that any extension of tenure granted to someone holding the post of ED director after they have attained the regular retirement age should be for a short period. As Mishra was set to retire shortly, the court decided not to interfere further.
However, the judges did say in their judgment:
"We make it clear that no further extension shall be granted to the second Respondent [ie SK Mishra]."
The Modi government's desire to have SK Mishra as ED director – for whatever reason (maybe look at the cases the ED has filed/investigated during the last three years?) – cannot in any circumstance be considered an emergency or an extraordinary situation, necessitating the use of an ordinance.
The Supreme Court's judgment is not the clinching factor here, but it does highlight that there was in fact no bona fide reason for Mishra's tenure to be extended.
'Ordinance Raj' - Abuse Across the Decades
It is difficult to look at the CBI and ED ordinances and see them as anything but the ordinance-making power being "perverted to serve political ends" that the Supreme Court warned about in the DC Wadhwa case.
Technically, the court was dealing with the re-promulgation of ordinances by the Bihar government in that case (something it had to deal with again in 2017).
But both re-promulgation of ordinances and issuing them when there is no urgency are cut from the same cloth: a contempt for the democratic process and a desire to bypass scrutiny of the legislature.
To be clear, the Modi government, whether Modi 1.0 or 2.0, is by no means the first to use ordinances to push through legislation rather than using the proper means of law-making.
This tradition began in Jawaharlal Nehru's tenure in 1952 forcing the first Speaker of the Lok Sabha GV Mavalankar to write letters to the first Prime Minister asking him to promulgate ordinances only when there was an actual emergency.
From 1952 to 1964, some 70 ordinances were promulgated, which was considered to be more than propriety demanded.
Indira Gandhi happily jumped on the ordinance bandwagon in her first term as Prime Minister, promulgating nearly 40 ordinances in four years, before bringing in a staggering 99 ordinances in her second, Emergency-extended term from 1971 to 1977.
The perfect example of her abuse of the ordinance-making power was a July 1969 ordinance to nationalise several banks, promulgated one day before Parliament was supposed to begin a session.
The reason was simple: while bank nationalisation was a key part of Gandhi's socialist agenda, it was not a popular move. The Lok Sabha debates were expected to be fractious and difficult, so Gandhi went on the front foot, using the ordinance to make the move something of a fait accompli even as she then introduced it as a Bill in Parliament during the session that.
The Supreme Court eventually struck down the bank nationalisation law in the landmark RC Cooper case in 1970. However, it unfortunately failed to pass any comment on the use of the ordinance-making power even though this was specifically raised during the arguments.
The judges were not keen to step on the toes of the Executive when it came to determining what was necessary or not, a trend which has continued in the years since as well.
While the Supreme Court showed restraint to protect the separation of powers, it did give the Executive untrammelled power to misuse ordinances by claiming anything and everything as requiring urgent action. Subsequent central governments (not to mention states like Bihar) have taken full advantage of this, regardless of which party was in charge – and also indulged in re-promulgation of ordinances, which the Supreme Court has called a 'fraud on the Constitution'.
77 ordinances were promulgated by the Narasimha Rao government from 1991-1996. There was perhaps some justification for some of this extensive use of the extraordinary power given the tumultuous changes to the economy at the time.
However, shockingly, the subsequent government (under the prime ministership of Atal Bihari Vajpayee, HD Deve Gowda and then IK Gujral) also promulgated 77 ordinances, despite not even lasting two years.
After this, it looked like there might finally be a downturn in this 'Ordinance Raj'. During the NDA's time in power from 1998 to 2004, the number of ordinances passed was 58. In the UPA years from 2004 to 2014, 61 ordinances were promulgated, with only 25 passed by the UPA II government.
Unfortunately, despite the large mandates held by the Modi government, it has brought back the use of ordinances with a vengeance. From May 2014 till April 2021, it had promulgated 76 ordinances, 45 of which were passed in the Modi 1.0 government. The number of ordinances this year itself (including the CBI and ED director ordinances) comes to 10.
While the absolute numbers and even the per annum numbers show an increase in the number of ordinances during this tenure, perhaps the most interesting barometer of how this has become a problem during the Modi years is the ratio of ordinances to regular Bills introduced in Parliament.
Across the Nehru and Indira Gandhi years, despite the latter's depredations, this ratio was about 1 ordinance for every 10 Bills introduced. Over the next three decades, it was around 2:10.
However, during Modi's time in power, it has risen to around 3.5 ordinances for every 10 Bills introduced.
This can hardly be considered healthy in a parliamentary democracy, where this power is supposed to be used sparingly.
Just because a government has a majority in the Lok Sabha or a state Assembly doesn't mean that these institutions can just be bypassed. Laws are supposed to be discussed and debated in a Legislature, with questions asked not only by opposition politicians, but also by thinking members of the 'ruling party' as well.
Even if the law in question is passed, this debate allows for the introduction of amendments, or can suggest that the law be sent to a select committee for review (the number of Bills sent for review to select committees already came down to 25 percent during Modi 1.0, as compared to 60 percent and 71 percent in the UPA I and UPA II terms respectively).
If ordinances are used (and then re-promulgated) without being later introduced as Bills, then this process goes entirely out of the window. Even if Bills are later introduced, the atmosphere is no longer particularly conducive to discussion, as the government has already shown a willingness to subvert the democratic process.
The way the farm laws were bulldozed without discussion through Parliament, with a farce of a voice vote in the Rajya Sabha that ignored all the rules is an excellent example of the latter situation.
The lack of respect that the Modi government showed for the democratic process has had its consequences, as the farm laws fiasco has come back to bite them.
Unfortunately, the consequences for Indian democracy could be worse if this obsession with 'Ordinance Raj' continues.