Ordinance is simply "legislation by the executive", in the Indian context Article 123 of constitution vests this power with the President but expressly states that this must be resorted to "when it is not possible to have a Parliamentary enactment on the subject immediately".
Would the ordinance on convicted legislators almost passed by the UPA government have stood its ground in this litmus test of immediacy or urgency?
The need for ordinance arose out of a Supreme Court hearing on a PIL on July 10 2013 in which it ruled the section 8(4) of representation of Peoples Act (RPA) 1951 ultravires. SC observed "The person convicted of any offence & sentenced to imprisonment for more than two years is to be immediately disqualified as MP/MLA & if a MP/MLA is convicted of crimes such as promoting enmity in society, irrespective of the amount of sentence is disqualified for six years."
The ruling has been dubbed by the political class as 'interference by the judiciary in legislature', but the SC ruling is based on the principle that there cannot be double standards i.e a convicted legislators can continue in office but an ordinary citizen convicted of a crime cannot contest elections. Is the government implying by this ordinance that legislators are super citizens?
Veteran parliamentarian Somnath Chaterjee was quoted as saying the SC verdict is unsound as it takes away the right of appeal from citizens. He also pointed out instances where the verdict of lower court was over turned by the higher court by appeal.
Notwithstanding the facts, the ordinance set a bad precedent as it was a back door entry of the legislation which faced opposition in the Monsoon Session of the Parliament. There were two bills introduced in that session to nullify the SC verdict:
The governments haste was partly due to the cases of important allies like Lalu Prasad Yadav and also of Congress sitting MP of RS Rasheed Masood that were pending judgment and may lead to their disqualification.
The haste is also explained by the approaching general elections. With the elections due in May 2014 political parties are cajoling the criminal elements who bring in the muscle and money power essential to win the election.
An independent survey conducted by the association for democratic reforms paints a grim picture of our MPs and MLAs. In Lok Sabha, out of 543 MP's 158 have criminal charges pending against them. In the states out of 4032 MLAs 1258 face criminal charges. In Jharkhand, more than half of the MLAs face criminal charges.
It was right move of the government to eventually withdraw the ordinance was, otherwise it would have set a bad precedent in the governance of the country.
It needs to be remembered there is a vast difference between India of 1970's when emergency could be imposed and today, when a vibrant civil society and a robust media has emerged that would not allow the politicians to have a free run.