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Ordinances: Modi government’s counter to Congress’ legislative blockade

Ordinances are like the super-subs in football. Only, in this case, the playing field is the parliament. I have previously pointed out how Congress has blocked the regular parliamentary proceedings and halted important legislative actions which otherwise could have been transformational for India. This parliamentary blockade has frequently halted the urgently required legislative actions needed for the government. There are very few options available to any sitting government to counter such move by a relentless opposition which will willingly sacrifice the need of the masses for their political agenda.

This is where Ordinances come into play. Now, traditionally ordinances are used to pass ‘immediate legislative action’ by the government and can only be promulgated by the President of India on the recommendation of the Union Cabinet. It can only be issued when parliament is not in session. Although it should be mentioned that ordinances are not always the most advisable solution to a legislative problem when the legislative is paralyzed, it is only available option for the government.

Such ordinance and its fruitfulness were recently displayed, when the National Sports University ordinance was passed to create India’s first university dedicated to sports, it was promulgated because the Bill was not taken up and discussed upon in the Parliament and hence, an ordinance was brought in which allows the Indian government to set up this university in Imphal, Manipur.

This is not an isolated instance where the president had to step forward due to the human-induced legislative paralysis in Parliament. Here is a list of ordinances passed by the incumbent government due to parliamentary blockade by the Congress Party. The following is not an exhaustive list, but an indicative one.

The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015 

The bill was initially introduced in the Rajya Sabha by the Finance Minister, Arun Jaitley. The comments from the standing committee were sought but they did not file the report till December of 2015.

As this was an important legislative action deemed by the Government, the President took action and brought this ordinance which enabled the constitution of commercial courts in all state and union territories. These courts are to be equivalent to District courts in their jurisdiction. They will deal specifically with commercial disputes and commercial divisions are to be set up in high courts. The principal judge in a commercial court will have the same power as the chief principal District Judge of a District Court.

The Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015

The ordinance was promulgated on 12th January 2015. It was deemed by the government that the leasing process in the said industry was a bit problematic and the number of new leases granted every year was dropping significantly. To ensure transparency the ordinance proposed that all grants regarding mineral concessions be done through auctions. The tenure of mineral concessions was also increased from 30 years to 50 years in this specific ordinance. It also removed multiple barriers to fast-track the granting process of mining rights by removing ‘prior approval’ from the central government on ten minerals and the need to approve the mining plan form the government was also done away with.

The Citizenship (Amendment) Ordinance, 2015

This ordinance was promulgated on 6th January 2015. It replaced The Citizenship Act, 1955. This ordinance was brought in to curb out the disparity between the two schemes that the Central government has for Indian origin persons namely, the Overseas citizen of India and persons of Indian Origin scheme.

Traditionally, Overseas Indians enjoy more benefits than Persons of Indian Origins, such as multipurpose life-long visa to visit India. This ordinance bridges the gap between these two by proposing that the central government may consider Persons of Indian Origins as the Overseas Citizen of India from a specified date.

Another aspect of this ordinance was the introduction of citizenship by registration and naturalization. A person is eligible to apply for a citizenship by registration if they or their parents have been Indian citizens in the past. For one to be eligible for naturalization, he or she has to be a resident of India for at least the last 12 months immediately preceding the date of application.

The Indian Medical Council (Amendment) Ordinance, 2016

This is perhaps the most important ordinance of 2016, passed by the Modi government. This ordinance later paved the way for the act of the same name. It was promulgated on May 24, 2016. This ordinance introduced a uniform entrance examination for all medical educational institution, doing away with possible disparities in state boards and their respective question patterns.

This also opened up the medical sector for students who are not comfortable with English as the language of the examination, by declaring that the question is printed in Hindi, English and other regional languages so language does not become a barrier in their pursuit of quality medical education. It also gave the MCI the authority regarding how the exam should be conducted and the code of conduct.

The Enemy Property (Amendment and Validation) Ordinance, 2016

This specific ordinance was promulgated on January 7th, 2016. The ordinance seeks to amend the enemy property act, 1968 along with the Public Premises (Eviction of unauthorized occupants) Act, 1971. The definition of what constitutes as an enemy has been expanded to the heirs of the original owners even if they are citizens of India or other friendly nations and nationals of an enemy country who subsequently changed their nationality of another country.

There was some non-clarity regarding the vesting of such properties which has been dealt with in this ordinance. The divestment policy and the power of sale of such property also been changed in this ordinance. Regarding divestment, the ordinance allows the property to be returned to the owner only if an aggrieved person applies to the government, and the property is not found to be an enemy property.

The Insolvency and Bankruptcy Code (Amendment) Ordinance, 2017

The predecessor of the Act, this amendment is one of the most important legislative actions taken by the President regarding finance. This was brought in to amend the Insolvency and Bankruptcy code, 2016. It prohibited certain people from submitting a resolution plan or a specific and detailed account of restructuring a defaulter’s debt. It defined four sections – willful defaulters, promoters or the management of the defaulting company, disqualified directors or anyone who has defaulted abroad. The ordinance also bars an insolvency professional from selling the property of a defaulter to any such person during liquidation.

The Banking Regulation (Amendment) Ordinance, 2017

The ordinance was promulgated on May 4th, 2017. This ordinance amends the Banking Regulations Act, 1949 and adds provisions for recovery of outstanding loans. Under these new provisions, the Central government has the authority to authorize the Reserve Bank Of India to direct Banks to initiate recovery proceedings against loan defaulters.

Under this ordinance, the RBI has the authority to specific committees to advise Banks in regards to resolving stressed asset. The appointments to such committees will be made by the RBI. The recovery proceedings will be initiated under the Insolvency and Bankruptcy Code, 2016. This code provides a time-bound approach to resolve issues of defaults.

The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Ordinance, 2018

This was promulgated on May 3rd, 2018. This ordinance is in line with the current commercial scenario in India and the need to expand the jurisdiction of the previously mention Commercial courts. It primarily amends the definition of “specified value”, with regards to “commercial disputes”. This value has been drastically reduced to Rs. 3 Lakh from the earlier ceiling of Rs. 1 crore. So, in simpler terms, the Commercial courts’ ability to hear matters depends on the valuation of the case, which earlier was set at Rs 1 crore but now has been reduced to Rs 3 lakh. Thus, the Commercial Courts jurisdiction has increased exponentially.

The National Sports University Ordinance, 2018

I started this article by mentioning this specific ordinance. This ordinance was promulgated on May 31, 2018. This ordinance authorizes the central government to establish a National Sports University in Manipur. The ordinance also gives details account of the universities research orientation, functions, and the concerned authorities, as well as funding apparatus and the role of the central government.

This was all in the act which was previously introduced in the parliament but due to legislative blockade could not be codified. Thus, President Kovind understanding the possible positive implications of such a university on India and Indian sports promulgated this ordinance so that National interest can be given priority over the political one.

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