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Ordinance or Law?

Various Governments at the Centre have taken recourse to the Ordinance route, when apparently, they fail to pass a law. Since 2003, more than 100 such Ordinances have been promulgated, be it the Citizenship Amendment Ordinance, 2005 or the Payment of Bonus Amendment Ordinance, 2007 or the High Court and Supreme Court Judges, Salaries and Conditions of Service Amendment Ordinance, 2009 or Cable Television Networks Regulation Amendment Ordinance, 2011 or the All-India Institute of Medical Sciences Amendment Ordinance, 2012 or the Indian Medical Council Amendment ordinance issued twice in 2013 or the Citizenship Amendment Ordinance of 2015 or the recent Triple Talaq Ordinance. Some of them seem so innocuous that one wonders why an ordinance route was at all required.

The government has re-promulgated the ordinance banning the practice of instant triple talaq. Under the Muslim Women Protection of Rights on Marriage Ordinance, 2019, which held divorce through instant triple talaq illegal, void and as attracting a jail term of three years for the husband. Such Bills should have been cleared through the legislative route, but politics can derail even the best of the intentions. The question However, is do such ordinances stand the scrutiny of the Courts in view of various judgements on the subject?

Article 123 of the Constitution of India gives the power and authority to the President of India to issue an ordinance to meet the emergent demands arising out of extraordinary situations, having the same force and effect as a statute of Parliament only when both Houses of Parliament are not in session and will hold good only for a duration of six weeks from the reassembly of Parliament. What then is an emergent demand and an extraordinary situation? Ordinances, sometimes are issued to circumvent orders even in cases settled by the highest Courts. An ordinance was approved recently, by the Union Cabinet on the reservation mechanism for university teachers to undo the effect of the Allahabad high Court judgement of April 2017, which surely must have gone into the merits of the arguments. If the trend is used to undo Court orders through Ordinances, because of public pressure or because they are inconvenient, would it not be travesty of justice?

In the case of, Krishna Kumar Singh v State of Bihar, seven judge constitution bench of the Hon’ble Supreme Court of India on March 4th 2017, held that re-promulgation of ordinance as fraud on the Constitution. The Court also held that such ordinances are not immune from judicial review. Having pronounced thus, cannot the Supreme Court treat the Ordinances promulgated without proving emergency or re-promulgated, suo-moto as contempt of its privileges?

An Ordinance has always been brought about as borne out by history, to either undo a Court order or undo something, held not in the interest of the people or governance. Has an ordinance ever been brought about to repeal an unreasonable law or a draconian provision? For a beginning, can we repeal these with some ordinances passed? Legislature can stamp them later.

Advent of television and the Internet has changed the contours of information exchange significantly. Can then one of the most obsolete laws in India, The Indian Telegraph Act passed in 1885, introduced to allow the British to dominate India by tapping telegraphy across the country and beyond to prevent rebellions, be repealed as obsolete? Certainly, people do not use telegraphy to invoke rebellious protests now. Thirty-nine websites were blocked in 2013 and several being banned even today, for sharing offensive and obscene information with the internet users. How exactly does internet censorship stop men from watching these sites when there are many other methods to get across? We all understand the concept of adultery being a punishable offence. Sadly, the law has some major gender discriminatory clauses. While a man can be sentenced to jail for adultery if reported, is it applicable if the offence is the other way round? On the other hand, if a husband abandons the wife, what are the laws that protect the woman? The legal drinking age in some of the Indian states is 25 years of age. It is strange how a citizen has the right to elect the Government at 18 years of age but is not considered mature enough to decide whether he wants to consume alcohol or not. Further, the greyness in law teaches its citizens that they can commit suicide but God forbid, if they survive, they’re definitely going to prison.

The Land acquisition Act 1894, permits the government to deprive landlords off a large section of their land for making public buildings and spaces. Originally introduced by the British, the law has always been misused by the government for acquiring land for private projects in the name of ‘public purpose’. Doesn’t this law need some serious amendments to remove all ambiguity? Establishment and conduct of companies depend majorly on the Companies Act, 1956. Even after 24 amendments and more, the law has major flaws. It fails to cater to the modern business development efficiently. Admittedly, the current government has brought about several amendments for ease of business. It needs to do much more. Even the Factories Act 1956, though aims to cater to the working conditions inside factories and employment of women in hazardous jobs, especially for night shifts, needs amendments for it has an exactly opposite impact. Women are not allowed to work at night in factories, even though there are a hundred other professions that demand women working at night at present. What the law However, must ensure is safety. The India treasure trove act of 1878 or the Salt cess act of 1953 or the Indian Post Office Act of 1898 or the Aircraft act 1934 are all relics of the past and must go.

There are certainly more contentious issues like the Sabarimala temple and the equal right to pray for all women or the building of a Ram Temple, both matters of faith. The Government can at least show its resolve and intention on such contentious issues by bringing them before the legislature. So what if they were to be defeated on the floor of the house. Ordinance routes can be explored.

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