GOVERNANCE BY ORDINANCES – UNDEMOCRATIC AND UNCONSTITUTIONAL

GOVERNANCE BY ORDINANCES – UNDEMOCRATIC AND UNCONSTITUTIONAL   

I am getting more and more convinced of the truth of the idiom attributed to Marx namely, “that the bourgeois government is the executive committee of the Big Business and Industrial houses”. This is sharply brought out by Modi government issuing ordinances on Increased F.D.I. in Insurance and the Coal Mines (Special Ordinance) the very next day after parliament adjourned, notwithstanding that it had over 3 weeks to get these Bills introduced and try to get them passed. Of course it is well known that B.J.P. lacks majority in Rajya Sabha. But then why it did not call for a joint session where it claims it has majority. That a devious game was deliberately being played by B.J.P. in resorting to two ordinances is clear from the Union Finance Ministers open declaration (even during parliament session) that “if the opposition did not relent, the government was ready to take a joint session route” – notwithstanding this boast the government opted for undemocratic route of ordinances. 

It is well known that there are serious differences in Parliament about the very motive of passing the amendments allowing increased F.D.I. in Insurance Sector – that is why the insurance bill has been held up for nearly six years – B.J.P. ironically was the vociferous opponent in the last Lok Sabha. The history of L.I.C. since 1956, when life insurance was nationalized by paying just 5 Crores to then private insurance companies has been a gold mine to the Union Government. L.I.C. has given to the Central government hefty amounts yearly (2008 – 09 to 2012 – 13) of Rs. 929.12 Crores, 1030.92 Crores, 1137.62 Crores, 1281.23 Crores, 1436.38 Crores respectively (It also donated Rs. 7000 Crore in 7^th Plan). It defies logic why in such a situation central government should welcome F.D.I. resulting in loss to L.I.C. which will have to share premiums paid by Indian citizens to foreigners, unless it is a commitment given by Modi on his U.S.A. visit. So much is the desperate attempt to woo foreign investors that when their reaction was the expected one, namely that they would wait for regular law to be passed before risking their investment, union government came out with a convoluted version in the press that even if ordinance is not approved by the Parliament, enhanced F.D.I. made during ordinance period would remain valid and irreversible. This proposition is legally unsound because unless parliament passes the law by endorsing the ordinance, all actions under the ordinance, would be unconstitutional.

The Ordinance regarding auction of Coal Blocks is even more mischievous. I can understand that the blocks having been cancelled by the Supreme Court last year they had to be auctioned afresh. But under the cover of re-auctioning, mischievous steps are being taken to erode the provisions of Coal Mines (Nationalization Act. 1973) which provided that all rights title in relation to Coal Mines shall stand vested in the Central Government. It also provides that no person other than the Central Government or a government company or a corporation managed or controlled by Central Government can engage in mining. I am convinced that union government deliberately avoided introducing the Bill in Rajya Sabha. I say this because by the ordinance the Union Government has surreptiously indirectly amended the Coal Mines Nationalization Act, 1973. It knew very well that for B.J.P. Government to reopen nationalization by a debate in the parliament would make it run for cover and an open charge of serving the interest of its election fund donors. The ordinance is a half clever sly trick to bring private sector in coal mining after a lapse of over 40 years. People in Coal Business have explained that ordinance explicitly allows private public joint ventures and permits commercial mining by state government companies; activities which the Supreme had said were illegal. This will benefit favourite companies of Modi government that are already partnered by state government companies which lack mining expertise - an indirect method to scuttle the Coal Mining Nationalization law.

The ordinance regarding Land Acquisition is the limit of hypocricy and shows total contempt for Parliamentary system. This Act is the result of years of massive agitation by organizations like Narmada Bachao Andolan to get some justice to the evictees of land taken for the benefit of Big Business and industrialists. Surely this unanimous legislation by the previous Parliament can not be set at naught by an executive ordinance – the irony being that the Act was approved in the previous Lok Sabha by a Parliamentary Committee headed by the Present B.J.P. Lok Sabha Speaker. The puerile excuse that it was necessitated by keeping exemption of Atomic plants from the provision of the Act is phony because this would have required only amendment of Section 105. There was no urgency to dilute social impact assessment measure and the provision of enchanted compensation which was to benefit the millions of poor and dispossessed. Why does not B.J.P. openly admit that it owes a debt to big Business by displacing lakhs of farmers / poor residents so that it could open up –Delhi – Bombay corridors for the Corporate Sector for which Modis first visit to Japan was the precursor. In fact ordinance specifically empowers the govt. to exclude Industrial corridors from the applicability of the Act.

No Mr. President Mukherjee Sir, Your Excellency seeking clarification from 3 Central Ministers was only part obligation under the constitution when issuing the ordinance – the real stake holders, the millions of poor farming population needed to be consulted and heard through their well established representatives prior to issuing the ordinance especially when these organizations had also represented to you seeking a meeting.  

Ordinance making power is the legacy of British Colonialism. This should have no place in free India, nor is it to be found in any other democratic countries. But Modi Government is flouting it openly by having already readied an ordinance on Arbitration Act (what urgency can possibly explain such a bizarre move).

The Supreme Court has very strongly commented as far back it is 1987 that ordinance making power “is in the nature of emergency power to take action when the legislature is not in session. This power is to be used to meet an extraordinary situation and it can not be allowed to be” “perverted to serve political ends”. 

Thankfully Modis undemocratic exercise of power is being resisted by Trade Unions who have decided to go in Token Strike – Coal Mines Workers Union and other trade unions have also decided to hold a joint demonstration and protest before the Parliament when it holds its next session. 

RAJINDAR SACHAR

DATED: 06/01/2015

NEW DELHI